Family Law News
A newsletter published by the Section Council of the Section of Family & Juvenile Law
Maryland State Bar Association, Inc.
September 2010
Table Of Contents
Message from the Editor . . . . . . . . . . . . . . . . . . . . . . . . 2
From Where I Sit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Adultery: Who Cares. /?/!/*@%#! . . . . . . . . . . . . . . . . . . . . . 5
Marital vs. Non-Marital Debt . . . . . . . . . . . . . . . . . . . . . . 8
Ricketts, Now What . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Status Offenses: An Underutilized Tool for Warly Prevention? . . . . . . . . . 13
Case Note: In Re Adoption/Guardianship of Alonza D.
and Shaydon S. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Case Note: In Re Adoption/Guardianship of Chaden M. . . . . . . . . . . . . 18
Case Note: In Re Shirly B., Jordon B., Davon and Cedric B. . . . . . . . . . . 19
Case Note: In Re Caitlin N.. . . . . . . . . . . . . . . . . . . . . . . . 22
Case Note: Henriquez Redux . . . . . . . . . . . . . . . . . . . . . . . 24
Case Note: Jason Brandenburg . . . . . . . . . . . . . . . . . . . . . 25
Wading into Deep Water. . . . . . . . . . . . . . . . . . . . . . . . . 27
Case Note: Boemio v. Boemio and the Evolving Use of
Alimony Guidlines in Maryland . . . . . . . . . . . . . . . . . . . . . 29
A Letter to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . 30
Legislative Summary for 2010 Legislative Session. . . . . . . . . . . . . . 35
Editor: Walter A. Herbert, Jr.
Assistant Editor: Kristine Howanski
Assistant Editor: Justin Sasser
Message from the Editor
I hope that you all made the trek to Ocean City for our Annual Program in June; Dorothy Lennig did
a great job as our Program Chair, our panels were informative and, as always, our vignettes were
very funny. Dorothy now takes command as our new Chair, and our other new officers are Dorothy
Fait as our Secretary and Justin Sasser as our new Treasurer; Mary Sanders assumes the post of Immediate Past Chair.
I think this is our first September issue…nobody wants to write in the summertime, but thank goodness
some of our colleagues did. Our very own Dorothy Fait provides a handy list of important legislation
that passed, and being Dorothy, she even gives us a list of the bills that failed (but will be coming
back…) We have lots of Case Notes, and some interesting articles on Adultery and Marital Debt…
as always, many thanks to all who responded to my badgering…
Finally, this is my last issue as Family Law News’ editor. It has been a great ride of 7 years, but now
it is my turn to step-up and plan the Annual Program as Chair-elect, and Dorothy Lennig, bless her
heart, pointed out to me just how much work is involved in putting on our Annual Program.
Our new editor is Kristine Howanski, many of you will remember her as the Chair of the Baltimore
County Family Law Committee, I am certain that we are in good hands.
By the way, I do expect each of you to be in Ocean City in June…see you at the beach…
Walter A. Herbert, Jr.
Kristine K. Howanski
Justin J. Sasser
DISCLAIMER
Statements or opinions expressed herein are those of the authors and do not necessarily reflect
those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial
Board or the Family & Juvenile Law Section Council.
The FJLSC makes every effort to check the accuracy of the articles submitted, but does
not warrant accuracy.
2 Section of Family & Juvenile Law
September 2010
From Where I Sit
By: Judy Lynn Woodall
If I had a nickel for every request to impute income in a child
support case without a finding of voluntary impoverishment, I
could retire early. Well not really, but it would make for a hefty
contribution toward a white linen tablecloth and napkin lunch. The
issue of imputing income is a challenging one since a finding of
voluntary impoverishment must, in every case, precede any imputation of income. Yes, say it out loud – there must be a finding
of voluntary impoverishment before income can be imputed. A
parent quits a job that pays $100,000.00 per year to open a business
that has the potential for making millions. After one year his or
her income from the new business barely exceeds $20,000.00 per
year. This substantial decrease is due, in part, to a slow economy.
Voluntary impoverishment? What about a custodial parent who
has remarried and chooses to stay home with a child born as a
result of her remarriage. Voluntary impoverishment? Finally what
about the parent who has been seeking employment for the past
two years and simply cannot find work but refuses to work at the
local fast food restaurant. Should we make a finding of voluntary
impoverishment? On the surface, this issue may seem straight
forward however; closer examination takes us into a quagmire and
reminds us of why we became lawyers in the first place. It is my
hope that this article will provide a place to begin your research
in the presentation (or defense) of this issue.
Maryland Code (1984, 1991 Repl. Vol., 2009 Supp) Sections
201(h) (1) and (2) of the Family Law Article defines, actual and
potential income of a parent. Actual income is defined as, actual
income of a parent, if the parent is employed to full capacity.
Potential income means, potential income of a parent, if the
parent is voluntarily impoverished (emphasis added). Section
12-204(b) of the Family Law Article states …if a parent is voluntarily impoverished, child support may be calculated based
on a determination of potential income. The Court of Special
Appeals in John O. v. Jane O1 defined voluntary impoverishment
as freely, or by an act of choice, to reduce oneself to poverty or
to deprive oneself of resources with the intention of avoiding
child support…2 The court set forth factors to be considered in
determining whether a party is voluntarily impoverished. These
factors are: 1) his or her current physical condition; 2) his or
her respective level of education; 3) the time of any change in
employment or other financial circumstances relative to the divorce proceedings; 4) the relationship between the parties prior
to the initiation of the divorce proceedings; 5) his or her efforts
to find and retain employment; 6)his or her efforts to secure
retraining if needed; 7) whether he or she has ever withheld
support; 8) his or her past work history; 9)the area of which
the parties live and the status of the job market there; and 10)
any other considerations presented by either party.3
The court in John O reviewed the very detailed evidence presented by both parties and remanded the case for the trial court
September 2010
to make specific findings on the issue of voluntary impoverishment. The Court stated the failure of the court to find specifically that Mr. O voluntarily impoverished himself necessitated
a remand. Hmmm. Nothing is simple in matters of love and
child support.
In Goldberger v. Goldberger4, custody of the parties’ six minor
children was awarded to Mother (Appellee). The facts in this
case were undisputed. Father (Appellant) was 32 years old,
healthy as an ox but never worked a day in his adult life (or
any other life). Father planned to spend his life as a perpetual
learner – a student. Father was a student before he was married
and remained a student after his children were born. Father’s
sole source of support came from family, friends and the kindness of strangers in his community. The trial court found Father
had voluntarily impoverished himself and imputed income for
the purpose of paying child support.
Notwithstanding his state of poverty, Father appealed the ruling
citing as error the trial court’s finding of voluntary impoverishment since he has always been voluntarily impoverished (the old
“you knew I was a snake when you brought me here” defense).
The Court of Special Appeals spent a couple of pages setting
forth the relevant law about one’s obligation to support one’s
minor children and concluded the Appellant had a legal obligation to support all six of his children. Whew, glad we cleared
that up. The question then turned on whether income could be
imputed to a party who never really had any. Yes, of course it
can, which is why the court spent two or three pages talking
about a parent’s obligation to support one’s children. The court
went on to say, whether the voluntary impoverishment is for the
purpose of avoiding child support or because the parent has
chosen a frugal lifestyle for another reason, doesn’t affect the
parents obligation to the child.5
The Court of Special Appeals dispensed with Mr. Goldberger’s
argument and determined: [For] the purposes of the child
support guidelines, a parent shall be considered voluntarily
impoverished whenever the parent has made a free and conscious
choice, not compelled by factors beyond his or her control, to
render himself or herself without adequate resources. The court
instructed, in making this determination, the trial court should
look at the factors stated in John O6.
The Court of Appeals in Wills v. Jones7 declined to adopt the rule
in John O as being too narrow. The court stated the question
is whether a parent’s impoverishment is voluntary, not whether
the parent has avoided paying child support. The Wills court
did not seem to care why a parent had impoverished himself or
herself, only that he or she had.
(continued on page 4)
Section of Family & Juvenile Law 3
From Where I Sit...
(Continued from page 3)
In this case, Mr. Jones and Ms. Wills were the parents of a minor
child whose support obligation was the subject of this appeal. As
fate would have it Mr. Jones committed a crime and got caught.
Mr. Jones was sentenced to a mandatory ten-year sentence. Mr.
Jones was under court order to pay support for the minor child.
Realizing he would not be getting any cost of living increases
while incarcerated, he filed a motion to “Stay Enforcement of
His Child Support Obligation”8. The master recommended Mr.
Jones’ motion be denied finding his incarceration was “selfinduced and voluntary”. The Circuit Court disagreed and granted
the motion finding Mr. Jones was not voluntarily impoverished.
The Court of Special Appeals affirmed the Circuit Court and Ms.
Wills appealed arguing, Mr. Jones’ support obligation should not
be modified because an incarcerated parent should be considered
voluntarily impoverished.
The court discussed the meaning of “voluntariness” at length
and concluded, it stretches the imagination to conclude that Mr.
Jones’ incarceration was voluntary (and besides do you think
he would have committed the crime if he thought he was going
to get caught- I don’t think so).
In Moore v. Tserouis9, Father, the non-custodial parent, was under
a support order for two children. He remarried and he and his
new wife decided to move from Baltimore to Garrett County
(I’m guessing to get away from wife number 1). Father filed a
motion to modify his support order since his income in Garrett
County would be less than what he earned in Baltimore. “Voluntary Impoverishment”? The master thought so, after all it’s
not like he didn’t know that the wages in Garrett County were
less than the wages paid in Baltimore. Court of Special Appeals
said, nope. Court acknowledged the difference in income but
stated, [w]e do not believe, however, that a court can restrict
a parent’s choice of residence in order to insure that he or she
remains in or moves to the highest wage earning area10.
Wagner v. Wagner11 teaches nothing new but stands for the
proposition when parties enter into litigation that starts in 1987
and concludes in 1996 it is time to invest in one of those wheelie
carts for the purpose of transporting their file (all 16 volumes)
so you won’t injure your back. Seriously, the Court of Special
Appeals reiterated the holding in Wills stating, to determine
whether [a parent’s] impoverishment is voluntary, a court must…
ask whether his [or her] current impoverishment is by his [or
her]… own free will, regardless of the motivations therefore12
(emphasis added). When the dust settled, Mr. Wagner was
awarded custody of the parties’ minor children. Mrs. Wagner
took a job paying approximately $60,000.00, resigned it for one
paying $20,000.00 and, if that wasn’t enough, she transferred
her home to her parents for nominal consideration. The court
stated, the relevant inquiry, as clarified by the court in Wills, is
whether Ms. Wagner brought about her impoverishment intentionally and of her own free will.
4 Section of Family & Juvenile Law
The case of Durkee v. Durkee13 is similar to Goldberger in that
the situation that caused the inquiry of whether a party was
“voluntarily impoverished” existed during the marriage. In
short, the court declined to adopt appellant’s contention that a
court may not find voluntary impoverishment unless the decline
in income occurs after the separation.14
Finally, two other cases worth reading are Stull v. Stull15 and
Petitto v. Petitto16. In Stull the trial court imputed income to
the obligor after a finding of voluntary impoverishment. The
obligor was fired from his full-time and part-time job. He was
fired from the full-time job for falsifying documents. Now, if
you have been paying attention, you should have reached the
same conclusion as the Court of Special Appeals – no voluntary
impoverishment. This case was similar to Wills in that the
court found the obligor did not intend the result of his actions.
In Petitto17, the court found a custodial parent could also be
voluntarily impoverished. The same free will (blah, blah, blah)
analysis and Jane O18 factors followed the courts finding of
voluntary impoverishment.
In conclusion, and as I encouraged you to repeat out loud earlier,
in order to impute income a finding of voluntary impoverishment
must happen first. The facts must support a finding that either
the obligor or obligee has made a free and conscious choice, not
compelled by factors beyond his or her control, to render himself
for herself without adequate resources. The court has made it
clear that the reason for the impoverished state is of no moment
and has provided factors (found in the Jane O case) to assist in
making this determination. Thereafter feel free to present facts
and argue how much income should be imputed when setting
child support pursuant to the Guidelines.
Judy Lynn Woodall is a Master in Prince George’s County
and has served the citizens of Prince George’s County for the
past eight years.
Footnotes:
1 John O. v. Jane O, 90 Md. App. 406 (1992)
2 Id., 90 Md. App. at 421
3 Id., 90 Md. App. at 422
4 Goldberger v. Goldberger, 96 Md. App. 313 (1993)
5 Id., 96 Md. App. at 326
6 John O. v. Jane O, 90 Md. App. 406, (1992)
7 Wills v. Jones, 340 Md. 480(1995)
8 The court treated Mr. Jones’ motion as one for modification
pursuant to FL 12-104.
9 Moore v. Tserouis, 106 Md. App.275 (1995)
10 Id., 106 Md. App. at 283
11 Wagner v. Wagner, 109 Md. App.1 (1996)
12 Id., 109 Md. App. at 45 and 46
(continued on page 5)
September 2010
Adultery: Who Cares. /?/!/*@%#!
By: Lindsay Parvis, Esquire
Do we care about the role of adultery in our cases? Does the
Court? Should our clients care (as much as they do)? And,
should we care more?
Many of us would say adultery has little or no impact on the
outcome of a case. Perhaps more precisely, it should be said
that adultery has an unknowable and unpredictable impact. That
said, perhaps we jaded practitioners dismiss its importance to our
clients and relevance to the court if properly presented.
stances and facts which contributed to their estrangement…[C]
ertainly equity requires that the listed factors be weighed by the
Court and that the parties’ contribution to the familial well-being
and their contribution to familial ill-being both be considered.”
(January 1978 Report)
Grounds The Commission’s Report (January 1982) is remarkably devoid of discussion, except as relates to recrimination
and condonation.
Legal and Historical Context
What Adultery Is
While we all know that adultery is relevant as a ground, a circumstance contributing to the parties’ estrangement (monetary
award and alimony), and to custody as relates to the child(ren)’s
welfare, why do we care legally?
Adultery is voluntary sexual intercourse between a married
person and a person who is not their spouse. Flood v. Flood, 24
Md.App. 395, fn. 1 (1975). In the absence of direct personal observation of the act, circumstantial evidence from which a court
can infer the adultery occurred is necessary to prove adultery.
Dougherty v. Dougherty, 187 Md. 21, 27-28 (1946). Specifically, the spouse alleging adultery has the burden of showing,
with corroboration, an adulterous spouse’s disposition to commit
adultery with the paramour and opportunity to commit adultery.
Id. Mere suspicion and indiscretion alone are insufficient proof.
Donovan v. Scuderi, 51 Md.App. 217, 222-223 (1982), internal
citations omitted.
The Reports of the Governor’s Commission on Domestic
Relations Laws (available in PDF on the Maryland State Law
Library’s Online Catalog) provide interesting insight:
Alimony “[T]o frame a proposal that would provide the fairest
possible outcome of the alimony problem for most divorcing
parties in this State, while vesting the Judiciary with discretion
adequate to make special provision for the special virtues of
Galahad and Griselda, and the special vices of Jezebel and Mr.
Hyde” (January 1982 Report). “It is contrary to common experience to suppose that a Court will in fact ignore the comparative
rectitude of the parties and regard virtue and vice in the same
light, and it is contrary to the principles of equity that a Court
should do so.” (January 1980 Report)
Monetary Award “As virtue, embodied in the respective contributions of the spouses to the well-being of the family which is
involved in the first factor, is relevant to the rights and equities
of the parties in their marital property, so also is its correlative of
fault, embodied in the fourth factor, which refers to the circum-
From Where I sit...(Continued from page 4)
13 Durkee v. Durkee, 144 Md. App. 161 (2002)
14 Id., 144 Md. App. at 186
15 Stull v. Stull, 144 Md. App 237 (2002)
16 Petitto v. Petitto, 147 Md. App. 280 (2002)
17 Petitto v. Petitto, 147 Md. App. 280 (2002)
18 John O. v. Jane O, 90 Md. App. 406, (1992)
A Reality Check
No matter what the law says or intended, who cares and how
much? A survey of practitioners in the real world sheds light…
According to Carlos M. Lastra, Esquire, a partner at
Brodsky, Renehan, Pearlstein, Lastra & Bouquet in Gaithersburg, Maryland:
Adultery can be persuasive when it is the reason for the estrangement, as opposed to a symptom. When adultery is at issue,
focus on whether marital income and assets were diverted in
result. Where adultery caused the estrangement, despite no
tangible financial effects, presenting the required proof can
also benefit the client’s feeling s/he was heard and so got a fair
trial. When weighing whether and how to present adultery to
the court, preparation is key: to show the level of deception,
length and breadth of adultery, impact in the client’s specific
case (such as adultery continuing during marriage counseling,
using adultery to attack the wronged spouse), and impact on
adulterer’s credibility.
From Regina DeMeo, Esquire, Senior Counsel with Joseph
Greenwald & Laake’s Rockville office and current Co-President
of Collaborative Divorce Association, Inc.:
(continued on page 6)
September 2010
Section of Family & Juvenile Law 5
Adultery: Who Cares?...
(Continued from page 5)
The most painful reality is that at the end of the day, the court
may not be able to compensate someone who dedicated 20 faithful years to his/her family, only to have the other spouse run off
with a younger model. The best advice I can give these clients
is to seek counseling immediately, so that they can air their feelings, start the healing process, and hopefully get their emotions
under control so that they can make sound financial decisions
with respect to their legal divorce (which is different from the
emotional divorce that may not come until much later.)
I am reminded of a quote I found in a fortune cookie not long
ago: Love is like War, so easy to start, so difficult to stop. But it
is our job to stop the war, and not feed into the anger our clients
are feeling. It is our duty to be the voice of reason.
Ronald Bergman, Esquire of Houlon, Berman, Bergman, Finci,
Levenstein & Skok, with offices in Greenbelt and Rockville,
gives a broad view:
I have been practicing family law for over 35 years across the
state. When I first started practicing, the issue of adultery carried some weight in some of the more conservative counties,
and slightly affected alimony, marital property and attorney’s
fees awards. Mediation was uncommon in the 70’s and early
80’s. During the initial interview process, the clients were
greatly concerned about the impact of adultery, and despite some
reassurance that it wouldn’t make a large impact, that attitude
oftentimes carried through during the mediation process. So, for
negotiation purposes, there was still leverage.
During the last 20-25 years, the affect of allegations of adultery
has had much less of an impact on the outcome of cases in both
mediation and litigation, except for monetary awards and settlements involving attorney’s fees. However, regardless of your
advice, the client’s attitude can still be emotional and adversely
impact the handling of the case.
Darcy Shoop, Esquire, a solo collaborative divorce attorney in
Rockville and Past-President of Maryland Collaborative Practice
Council and Collaborative Divorce Association, Inc., weighs in
on the impact in the collaborative process:
In collaborative cases, acknowledgement of, rather than blame
for, a sexual relationship outside the marriage can be important
to help move settlement forward. Often the deep hurt and sense
of betrayal felt by one spouse can be contained if those feelings
are recognized by the other spouse. In one case, a spouse continued to deny such a relationship and the anger so obviously
experienced by the other spouse during collaborative meetings
created an almost insurmountable obstacle to productive discussion. The spouse who had the relationship was encouraged
privately by the collaborative coach and lawyer to reveal the
truth. At the next meeting, the relationship was confirmed and
6 Section of Family & Juvenile Law
regrets were expressed by that spouse. The other spouse said the
confirmation was critical in helping to process the anger. The
case ultimately reached amicable resolution.
Jeffrey N. Greenblatt, Esquire, of The Law Office of Jeffrey N.
Greenblatt in Montgomery County, provides practical advice:
Clients think adultery is the be all, end all, whereas, if all else
is equal, it alone rarely has a significant impact on most judges,
who usually don't exact revenge upon the errant spouse. His
greatest success pursuing an adulterous spouse arose from flagrant adultery, as if to purposefully hurt his client, coupled with
outrageous expenditures on the paramour. The cost of pursuing
an adultery claim must be weighed, and can be significant depending upon where the adultery occurs. There is a cost-benefit
analysis for clients when deciding whether to spend $10,000 $15,000 in investigative costs to prove the adultery when there
is uncertainty as to what benefit the client would derive, if any
(since no attorney can know if a client will be $10,000-$15,000
better off in the end). If the cost is less, then the decision is
easier. A tip: It is usually cheaper to hire a private investigator
here, even if you need to pay for their travel to investigate out of
state/country because the cost at the time of trial is likely to be
less, and you have the security of knowing that the investigator
is close at hand.
Kenneth D’Angelo, a private investigator and founder of Target
Investigations in Gaithersburg, provides a unique view:
His cases tend to fall into two categories: 1) proving grounds
with opportunity and disposition; or, 2) custody matters, documenting impact of the adultery on the children (mistreatment,
drug/alcohol use) and spending time away from family and
money on a paramour instead of on the child(ren). For many
clients, the key question is whether their spouse is telling the
truth or lying. Ken finds clients are satisfied when they find
out the truth, because until that point the client is in a quandary
about whether or not to believe their spouse. In his experience
as a fact witness, judges do not tend to make a huge case out of
adultery – they prefer to establish the facts, prove the grounds,
and move on. His tips for attorneys: Whether you are hands
on or hands off, advise the private investigator what you want
done and where to focus so the client’s dollars are used wisely;
don’t overlook the emotional component by dismissing the
adultery - clients need closure.
Karen Freed, LCSW-C, BCD, a therapist and collaborative
divorce coach in Bethesda, offers the following advice:
The sense of betrayal is extremely deep and painful for the nonadulterer, and a constant point of tension is how much detail they
(continued on page 7)
September 2010
Adultery: Who Cares?...
(Continued from page 6)
need to know versus how destructive the knowledge will be. For
attorneys, it is important not to minimize the impact of the affair
on both parties, not just the non-adulterer spouse (as an adulterer’s
guilt can urge him/her to give up everything or be an obstacle to
resolution if ignored). Attorneys should not use the affair as a
whipping boy to gain advantage in the case; whether there is one
affair or many, a betrayal is a betrayal and spouses need to find a
way to move past this in negotiations and to coparent.
how these manifest as settlement demands. This is especially
so when the “wronged” spouse finds themselves questioning
everything and having confidence in nothing. It can be a great
moment when in mediation an adulterer says “I never meant
to hurt you. I did not realize the pain I would cause you.” A
mediator can show an aggrieved party that s/he feels badly for
their pain; a judge cannot due to perceptions of bias.
Conclusion
The Honorable Ann Sundt, Retired Judge of the Circuit Court for
Montgomery County and Mediator with Creative Dispute Resolutions in Gaithersburg, brings two very helpful perspectives:
While adultery is alive and well, effective attorneys know there
is no compensation for a broken heart. An attorney should do
more than present a sobbing client in court; the judge wants
to know what you want the judge to do. Answer that question
with quantified financial damages as if it were any other type of
damages case. Is there a period of time without expectation that
the “wronged” spouse would work because of depression/grief/
betrayal? Is there a need for mental health treatment and what
is the cost? Should the therapist be called as witness? Is the
adulterer lying or not respecting rules & procedures elsewhere?
Make sure your client is prepared for this and understands that a
sympathy play alone is not enough because judges are limited in
how they can respond empathetically in fashioning a remedy.
In mediation, the issues can be explored more specifically,
including the parties’ positions resulting from the betrayal and
Adultery is indeed alive and well. As attorneys, we operate in
logic and reason, so tend to dismiss the impact of adultery on
the bottom line because there is no tangible financial benefit and
the cost to obtain proof may not be justified when other grounds
exist. An emotional issue, adultery seemingly takes us outside
of logic and reason. Because our clients and the law care, in
the end, so should we.
Through informed client cost/benefit discussions, efficiently
working with private investigators, developing a strategy
balancing grounds versus contributing circumstances, and
diligently quantifying and proving any financial damages,
we put logic and reason to work and so show our clients we,
too, care.
Lindsay Parvis is an associate at Dragga, Hannon, Hessler &
Wills in Rockville, Maryland, where she focuses her practice
on representing children, custody, domestic violence, and other
family matters.
SAVE THE DATE!
MSBA 2011 Annual Meeting
June 8-11
Ocean City, MD
Sea. You. There.
September 2010
Section of Family & Juvenile Law 7
Marital vs. Non-Marital Debt:
The Impact on Property Disposition and Monetary Awards
By: Lindsey K. Erdman, Esquire
Every family law practitioner is all too familiar with the massive
sea of debt in which most of our clients swim. Many clients in
the midst of divorce, particularly in today’s economy, are having trouble making their mortgage payment, let alone paying
you or paying down that nagging credit card bill that seems
to find its way into their mailbox each month. Lucky for you,
that client has made their way to your office, and he/she wants
relief and wants out of their debt, and to boot, they expect you
and the Court to make their spouse pay for it. So, what are you
to do and what advice do you give them? The advice you give
them and the approach you take in Court must be premised on
an understanding of the law as it relates to debt and how debt
can be resolved by the Court.
So what exactly is marital debt?
The client that just came into your office to retain you following
your initial consultation has just advised you that she maxed out
her credit card to pay for a fabulous and romantic tour of the
California Wine Country with her husband. You then discover
that her husband left her less than two weeks after their return.
Your client is out for revenge and she wants her money back,
from him. You take a big gulp, realizing that your next words
to her are not going to be particularly welcome. You put on
your game face and say, “You may have a very difficult time
getting that money back, unless we can get you a monetary
award.” Your client has no idea what you are talking about and
you can see in her eyes that she’s thinking of getting another
lawyer. You got the same reaction the week prior when another
client took out multiple parent-plus loans to pay for his son’s
four year education at University of Maryland, to the tune of
$80,000. Both clients, who we will refer to as Unfortunate
Client 1 and Unfortunate Client 2 respectively, thought this
was going to be really simple, particularly because they both
heard through the grapevine from a “friend of a friend of a
friend” that these liabilities constituted marital debt and would
be split by the trial judge. You, being the bearer of bad news,
have to tell them, “not so!”
Why is your client so surprised? The client’s surprise usually
stems from the common misconception about the liabilities that
constitute marital debt under Maryland law. Oftentimes clients,
and even many attorneys, believe that marital debt is a debt
incurred during the marriage for a marital or family purpose
(i.e., a child’s college tuition, a family vacation, accumulated
grocery bills, etc.), regardless of the spouse’s name on the liability. And, in most states, a marital debt is any debt incurred
during the marriage for the parties’ joint benefit. See TURNER,
BRETT R., EQUITABLE DISTRIBUTION OF PROPERTY § 6:97 (3d ed.
2009). Maryland law, however, differs drastically in its views
8 Section of Family & Juvenile Law
on marital debt, and it is the attorney’s job to explain this carefully, and sympathetically, to his/her client.
In Maryland, by definition, a debt can only be a “marital debt”
if the debt is directly traceable to the acquisition of marital
property. See Harper v. Harper, 294 Md. 54 (1982). For
instance, the first mortgage that was taken out at the time the
married couple purchased the marital home is a marital debt
because it was incurred for the purpose of acquiring a piece of
marital property. Likewise, the lien encumbering wife’s vehicle
that wife purchased during the marriage is a marital debt. As
explained in Kline v. Kline, 85 Md. App. 28 (1990), debt can
be a marital debt even if the debt is not a lien or encumbrance
on the marital property, i.e., husband borrows money from his
mother or uses his credit card to purchase a boat during the
marriage. A debt can also be a marital debt where the debt
was used to acquire a piece of marital property, but the debt
itself is attached to a different piece of property. For instance,
in the case where a married couple takes out a home equity
loan to purchase a timeshare, the portion of the home equity
loan attributable to the acquisition of the timeshare is a marital
debt that will be deducted from the value of the timeshare, not
the value of the marital home on which the home equity loan
is attached.
If a debt is not directly traceable to the acquisition of marital
property, it is a non-marital debt. See Freedenburg v. Freedenburg, 123 Md. App. 729 (1998). Unfortunate Client 2’s parentplus loans taken out to pay for his son’s college education are
accordingly non-marital debt, as the debt was not incurred
to acquire marital property. Even if those college expenses
were paid using a home equity loan that encumbers the marital
home, the portion of the home equity loan attributable to the
college debt would still remain a non-marital debt, despite the
debt being attached to marital property. Unfortunate Client
1’s tour of the California Wine Country is also a non-marital
debt. Even if the credit card debt incurred to pay for the trip
was in the spouses’ joint names, the debt would continue to
be non-marital debt.
The Court is required to make a decision as to the proper characterization of debt as marital debt or non-marital debt based on
the evidence presented. See Coutant v. Coutant, 86 Md. App.
581 (1991). Who owes the debt is as immaterial to a determination of whether a debt is marital or non-marital as who owns
the property itself. See Kline, 85 Md. App. 28 (1990). Next
we visit how the determination of whether a debt is marital or
non-marital will impact your property case.
(continued on page 9)
September 2010
Marital vs. Non-Marital Debt...
(Continued from page 10)
So how does marital debt and non-marital debt impact my
property case?
It is critical to first determine whether a liability is a marital debt
or a non-marital debt to understand when and where that debt
will come into play in the application of the Marital Property
Act. The Court must engage in a 3-step process in arriving at a
determination of a monetary award. See Ward v. Ward, 52 Md.
App. 336 (1982); Harper v. Harper, 294 Md. 54 (1982); and
MD. CODE ANN., Family Law §§ 8-203 through 8-205 (Replac.
Vol. 2006). The Court must first determine which property is
marital property, and then must determine the value of all marital
property. See Ward, 52 Md. App. 336 (1982); Harper, 294 Md.
54 (1982); and MD. CODE ANN., Family Law §§ 8-203 and 8-204
(Replac. Vol. 2006). Only after the Court has determined and
valued the marital property may the Court proceed to make a
monetary award. See Ward, 52 Md. App. 336 (1982); Harper,
294 Md. 54 (1982); and MD. CODE ANN., Family Law § 8-205
(Replac. Vol. 2006). A marital debt is relevant in step 2 – the
valuation of marital property. A non-marital debt, in contrast,
will only come into play in step 3 – the determination of the
amount and method of payment of a monetary award.
Marital Debt and Valuation
Marital debt comes into play in the second stage of the three-step
process, when the Court is required to determine the value of marital property. The Court is required to adjust downward the value
of marital property to account for any unpaid liability incurred to
acquire that property. See Schweizer v. Schweizer, 301 Md. 626
(1984); Green v. Green, 64 Md. App. 122 (1985); Niroo v. Niroo,
313 Md. 226 (1988); see also Goldberg v. Goldberg, 96 Md. App.
771 (1993). If the marital debt exceeds the value of the piece of
marital property, the value of that property is zero; marital property
cannot have a negative value. See Kline, 85 Md. App. 28 (1990).
Additionally, marital debt cannot be transferred from one piece of
marital property to another. See Id. These holdings in Kline are
of particular significance in today’s tough economic times where
unpaid balances of mortgages often exceed the fair market value
of the house. Particularly devastating are the cases in which a
home equity loan was taken out for use on improvements and/or
additions to the house, intended obviously to increase the value
of the home. At the time of absolute divorce, and later at sale,
many attorneys and clients are finding that the fair market value
of the home is not great enough to cover both the first mortgage
and the home equity loan.
Non-Marital Debt and Monetary Awards
Non-marital debt has no function in the valuation process. See
Schweizer, 301 Md. 626 (1984). Rather, non-marital debt will
only come into play in the last step of the three step process,
when the Court is fashioning a monetary award. Unfortunate
September 2010
Client 1 and Unfortunate Client 2 are both placed in a very
precarious position, and the attorney would be wise to explain
at the outset of the case the difficult position in which the client
finds him/herself.
First, the attorney and client must remember that a monetary
award is discretionary. The decision whether to grant a monetary award is generally within the sound discretion of the trial
court. See Alston v. Alston, 331 Md. 496 (1993). The Trial
Judge may grant a monetary award “as an adjustment of the
equities and rights of the parties concerning marital property.”
See MD. CODE ANN., Family Law § 8-205 (Replac. Vol. 2006).
In interpreting this Section, Maryland’s appellate courts have
discussed the legislature’s intent in creating this law. The
Court of Special Appeals has held that, “[t]he monetary award
is designed to accomplish an equitable division of the marital
property in an indirect manner.” See Ward, 52 Md. App. 336
(1982) (citing Ohm v. Ohm, 49 Md. App. 392, 396 at n.2, 431
A.2d 1371 (1981)) (emphasis added). In making a monetary
award, the trial court must use its sound discretion to arrive at
an award that is equitable and in accordance with the statute.
See Alston, 331 Md. 496 (1993). Both the client and attorney
must be mindful that what may appear fair to one person may
not be fair to another, and what is equitable to one judge may
not be equitable to another.
Second, although some factors required in considering a
monetary award may fall in your client’s favor, other factors
may weigh against your client and/or the debt which your
client faces may pale in comparison to other circumstances
or evidence presented. The trial judge must consider each
factor listed in Section 8-205(b) of the Family Law Article
when determining whether to grant a monetary award and the
amount of that award. Jandorf v. Jandorf, 100 Md. App. 429,
439, 641 A.2d 971 (1994). The trial court shall articulate that
it has considered all of these factors when granting or denying
a monetary award. Imagnu v. Wodajo, 85 Md. App. 208, 582
A.2d 590 (1990). The provisions of this section are mandatory,
and the failure of the trial judge to apply the statutory factors
will result in the award being vacated. See Bangs v. Bangs, 59
Md. App. 350, 475 A.2d 1214 (1984); see also Quinn v. Quinn,
83 Md. App. 460, 575 A.2d 764 (1990). As the attorney for
Unfortunate Client 1 and Unfortunate Client 2, you will likely
argue that factor 1 (the contributions, monetary and nonmonetary, of each party to the well-being of the family), factor
3 (the economic circumstances of each party at the time the
award is to be made), and factor 11 (any other factor that the
court considers necessary or appropriate to consider in order
to arrive at a fair and equitable monetary award . . .) favor a
finding that a monetary award is appropriate. Unfortunate
(continued on page 10)
Section of Family & Juvenile Law 9
Marital vs. Non-Marital Debt...
(Continued from page 10)
Client 1 may argue that her payment of the vacation was done
to promote the well-being of the couple and was done in an attempt to bring the couple closer; that she has been left alone to
pay this debt; and that her husband left within 2 weeks of their
return. Unfortunate Client 2 will argue that his absorption of
the child’s college expenses is a significant financial contribution to the child which promotes his education and future; and
that the absorption of that debt has left him $80,000 in debt,
in a grim economic situation, and he is therefore in greater
need for more marital assets; etc. Though the arguments that
both clients have are compelling, the attorney and client must
remember that these are but a few factors that the Court will
consider, and the other factors may either balance the scale or
even tip the scale in their spouse’s favor.
Third, the attorney and client must be mindful that the amount of
a monetary award cannot exceed the amount of marital property
owned by the payor. See Odunukwe v. Odunukwe, 98 Md. App.
273 (1993). Accordingly, if there is no marital property at all,
there can be no monetary award. Likewise, if marital property
exists, but it has no value, there can be no monetary award. In
the vast majority of cases, the largest asset that the parties own
is the marital home. If the marital home is “underwater,” the
client may be faced with the brutal reality of keeping the debt
and receiving no monetary award.
Conclusion
In conclusion, it is important for all family law practitioners
to understand the difference between marital and non-marital
debt, and how each type of debt impacts a property case. I find,
in practice, that it is one of the most misunderstood concepts
in family law, particularly by clients. It is the attorney’s role
to educate the client as to the client’s rights, potential “problems” in their case, and what the client may face in Court if the
case does not settle. Contrary to popular belief, not all debt
is treated the same by the Court, and it is critical to you and
your client that the difference is understood and accounted for
in your case strategy.
Lindsey K. Erdmann is an attorney in the law firm of Knight,
Manzi, Nussbaum, & LaPlaca, P.A. located in Upper Marlboro,
Maryland, focusing her practice in the area of family law. She
is also Co-Chair of the Family Law Committee for Prince
George’s County.
Quotation of the Month
"As I grow older, I pay less attention to what men
say. I just watch what they do.”
-Andrew Carnegie.
I’ve heard Judges and Masters say the same thing.
10 Section of Family & Juvenile Law
September 2010
Ricketts, Now What?
By: Master Paul Bauer Eason
It’s the same old tune, fiddle and guitar,
Where do we take it from here?
Rhinestone suits and new shiny cars,
It’s been the same way for years.
We need a change.1
In July of 2006, the Court of Appeals of Maryland published its
opinion in Ricketts v. Ricketts.2 At issue, was whether or not a
complaint for limited divorce alleging a constructive desertion
could survive a motion to dismiss when neither spouse had physically departed the marital home. The facts in Ricketts were quite
uncomplicated. Mr. Ricketts complained that his wife had ejected
him from the marital bedroom and refused to engage in sexual
relations. In response, Mrs. Ricketts asserted that a “desertion”
requires that the parties live separate and apart and that, “in the
absence of a separation, there is no ground for divorce on that
ground.” The trial court agreed with Mrs. Ricketts’ argument
and dismissed Mr. Ricketts’ complaint. An appeal followed.
In a unanimous twenty-two page opinion written by Chief Judge
Bell, the Court held that a constructive desertion can occur when
one spouse withdraws to a separate bedroom and refuses to engage
in sexual relations ( i.e. cohabit) without just cause even though
the married couple still resides together. The court cited its prior
ruling in Scheinin v. Scheinin3 that unequivocally held that, “It
is beyond question that there may be a desertion although the
husband and wife continue to live under the same roof.”4
In Scheinin, the husband had moved his “secretary” into the
marital home. The wife justifiably protested and insisted that
she leave. After the “secretary” departed the residence, Mrs.
Scheinin complained that her husband battered and otherwise
abused her. Ultimately, Mr. Scheinin told his wife that, “he did
not want to have anything more to do with her.”5 In response,
Mrs. Scheinin moved out of the marital bedroom, “ceasing to
live together as husband and wife.” On these facts, “the court
granted the wife, a limited divorce on the ground of constructive
desertion and awarded her alimony, custody of the children and
child support.”6
The Court of Appeals also indicated that under a Ricketts fact
pattern, a custody and visitation dispute could also be maintained
notwithstanding the jurisdictional requirements of Section
5-203(d) (1) of the Family Law Article which provides that, “[i]
f the parents live apart, a court may award custody of a minor
child to either parent or joint custody to both parents.” The Court
found that language to be “ambiguous” and “not to be read in
isolation.”7 Obviously, Maryland courts frequently make custody
awards in divorce actions where adultery and cruelty are alleged,
and both parties are living together. Accordingly, Ricketts would
not apply to an unmarried couple residing in separate bedrooms
and engaged in a custody battle precisely because there are no
September 2010
“maritial duties and obligations” the violation of which could
give rise to a cause of action.
Now, as a result of the holding in Ricketts and presumably with
a Judgment of Limited Divorce in hand, an injured spouse can
leave the home without fear that he or she is committing a marital
wrong. As the Court indicated in its opinion, “[a] limited divorce
which may be decreed for a limited or indefinite period is ‘one
from bed and board. It grants unto the injured spouse the right
to live separate and apart from the one at fault.’” Even more
impressive, in a “Ricketts case” out of Montgomery County, the
Court granted the wife custody, child support, mortgage contribution, exclusive use and possession and ordered the husband
out of the home in thirty days! Clearly the holding in Ricketts
clarified existing case law and highlighted new opportunities
for litigants and their lawyers to avoid the typical standoff that
frequently occurs when neither spouse is willing, or financially
able, to relocate to new quarters.
But what transpired next was truly interesting. In short order and
in what can only be described as a collective exercise of wishful
group thinking, lawyers were announcing in my Courtroom that
their clients were entitled to a divorce on the grounds of mutual
and voluntary separation, “pursuant to the holding in Ricketts.”
In other words, the parties were still residing under the same
roof and there were no allegations of a constructive desertion.
A possible explanation for this phenomenon may lie in the fact
that many lawyers who practice in Prince George’s County are
also admitted in the District of Columbia where “in-house”
separations for six months leading to a divorce are permitted
and no corroboration is required.
It is also possible that lawyers heard what they wanted to hear,
and assumed that the judges and masters would not bother to
read the opinion and simply accept their representations as to
what the case stood for. It got so bad that I kept copies of the
Ricketts opinion on the bench for the times when attorneys
became overly insistent in misrepresenting its findings. An informal survey on The Family & Juvenile section “List Serve”
confirmed that other counties were also grappling with attorney
assertions that, post-Ricketts, cohabitating couples were eligible
for a divorce on the ground of a mutual and voluntary separation.
In fact, in some instances, divorces were granted absent proof
of a constructive desertion.
With that said, will the Ricketts decision open up the floodgates
for a surge of “in-house” divorces? Absolutely not. In my
twenty–four years of private practice, I do not believe I ever
encountered a client who was complaining that their spouse was
living in a separate bedroom and refusing to engage in marital
(continued on page 12)
Section of Family & Juvenile Law 11
Ricketts, Now What...
(Continued from page 11)
relations. Typically, by the time the prospective client arrived in
my office, the marriage was, “in name only” and both spouses
were coming and going as he or she pleased trying to avoid the
other and any exposure to having to pay child support and/or
alimony that a separation might entail. Inquiries as to whether or
not marriage counseling might be helpful in saving or improving
the relationship were routinely rebuffed.
So, where do we go from here? Ricketts, while helpful, is no
silver bullet. Maybe it’s the poor state of the economy. And
maybe it is my libertarian leanings, but, it is time to seriously
consider amending our divorce statutes to allow for “in-house
separations” ultimately leading to an absolute divorce. Yes, our
public policy should support the institution of marriage. The
stability that a good marriage provides to children and families
is incalculable. With that said, we can better support marriage
and families when we create good jobs that provide a living wage
and when we build affordable housing and decent schools. But,
once the marriage has become terminal and toxic, why make the
granting of the divorce more cumbersome than need be? You do
not support marriage by making divorce difficult.
In the last session of the Maryland General Assembly, Delegate
Luiz Simmons from Montgomery County introduced legislation that he described as “a modest step forward” authorizing
a court “to grant a limited or absolute divorce on the ground of
voluntary separation if the parties are not engaging in sexual
relations.” The proposed amendment retained all of the elements
of our current one year statute except for the requirement for
separate residences. That bill was never voted upon. It needs
to be reintroduced and passed in the next session.
But how about beginning a debate as to eliminating all fault
grounds in the divorce process? Coincidently, while vacationing on the Eastern Shore, and stressing over the fact that I had
this article to write, I came across the following Letter to the
Editor in The New York Times regarding that State’s attempt
to pass “no-fault” divorce legislation that eloquently speaks to
the issue.
spouses once the divorce is final. Those issues must be
front and center, ahead of why they have decided not to
remain married. Why should any government have the
right to tell people they must prove that their marriage
is over for specific reasons the state deems worthy?
New York has stood alone on this issue. Couples are
the best experts in the viability of their own marriages.
It is time to allow overstretched matrimonial judicial
resources (needed by people in matrimonial litigations)
to focus on solving how the business of the divorce will
be handled, not the reason it is happening. Empowering couples in the divorce process to make their own
choices will with luck lead more couples’ choosing to
resolve their divorces with the help of mediators and
the support of counsel, as opposed to litigating in the
court system.8
Exactly my sentiments! Let the discussion begin! And by the
way, Mr. Ricketts received his Judgment of Absolute Divorce
and many thanks to all of the ListServers for their input and
participation. Your identities will forever remain anonymous.
Paul Bauer Eason is a Family Division Master in the Circuit
Court for Prince George’s County. Prior to his appointment in
2007, he was a solo practitioner for 24 years.
1
Lyrics from “Are You Sure Hank Done It This Way,” by Waylon
Jennings (1975).
2
380 Md. 230, 844 A.2d 427 (2004).
3
200 Md.282, 89 A.2d 609 (1952).
4
Ricketts v. Ricketts, 380 Md. 230, 844 A.2d 427 (2004) (quoting
Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952)).
5
Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952).
6
Id.
7
Ricketts v. Ricketts, 380 Md. 230, 844 A.2d 427 (2004).
8
Cara M. Raich – New York Times Letter to the Editor, June
22, 2010
To the Editor:
Re “Divorce”, No-Fault Style,” by Stephanie Coontz (Op-Ed,
June 17):
Having to establish grounds to get divorced can be
viewed as an encroachment on freedom. Consenting
adults deserve the freedom to choose when to end their
marriages without having to explain themselves to the
court, just as they do not have to explain to the state
why they are choosing to marry. The crux of the matter
in a divorce action in court is not the grounds (reason)
for the divorce; it is about how parenting time will be
allocated, how assets and liabilities will be divided and
how and whether money will flow between the former
12 Section of Family & Juvenile Law
September 2010
Status Offenses: An Underutilized Tool
for Warly Prevention?
By: Richard Maslow
“(e) “Child in need of supervision” is a child who requires
guidance, treatment, or rehabilitation and:
(1) Is required by law to attend school and is habitually truant;
(2) Is habitually disobedient, ungovernable, and beyond the
control of the person having custody of him;
(3) Deports himself so as to injure or endanger himself or
others; or
(4) Has committed an offense applicable only to children.”
Md. Code Ann. Cts. & Jud. Proc. Art. §3-8A-01(e).
habilitative services. CJ§3-8A-19(d)(iii). The court may commit
him/her to the custody of the Department of Juvenile Services
or the Department of Health and Mental Hygiene. Bringing
help to children through a CINS petition injects them into the
court process before they lose all interest in school, run away
or become hopelessly incorrigible and may help prevent them
from committing delinquent (and later, criminal) acts.
Maryland's juvenile courts, like Gaul1, are divided into three
parts. Most cases handled by Maryland's juvenile courts involve
abused or neglected children (children in need of assistance or
CINA) or delinquents. The third type of juvenile case is a “child
in need of supervision” (hereinafter, “CINS”), a status offense
that applies only to minors. This underutilized designation permits the Court to become involved in efforts to rehabilitate a
young person before he or she drops out of school or commits
a crime.
All children in Maryland between five and sixteen years of age
are required to attend school. Md. Code Ann. Ed. Art. §7-301.
One-half of the states currently require attendance beyond age
sixteen.6 Parents can be prosecuted for their parents' failure to
send the children to school, and children can be found children in
need of assistance for being “habitually truant.” The State Board
of Education has defined an “habitual truant” as a one who “is
unlawfully absent from school for a number of days or portions
of days in excess of 20 percent of the school days within any
marking period, semester, or year. A local school system has the
prerogative of defining habitual truancy in a more but not less
stringent manner (for example, unlawful absences in excess of 15
percent of the school days).7 Some local school boards, such as
Kent County, have policies of contacting parents after a child has
missed even 5 days of school (but have not altered the definition
of “habitual truancy”).8 Truancy represents a true failure of the
incentives for children to attend school and become educated –
forgoing the benefits of socialization with peers who attend, the
intrinsic achievements from learning and the financial benefits of
high school graduation.9 “Truancy may be the beginning of a lifetime of problems for students who routinely skip school. Because
these students fall behind in their school work, many drop out of
school. Dropping out is easier than catching up.”10
Allegany County and a few other Maryland counties utilize the
CINS section of the law while the majority have not had any
cases. Nationally, over 150,000 status offense cases are disposed
of by juvenile courts per year.2
A review of statistics reported by the Maryland Department
of Juvenile Services' (DJS) intake cases shows that it handled
1,734 CINS cases during FY 2009.3 Based on a survey of Circuit
Courts it is clear that most of these DJS intake cases did not
result in the filing of CINS petitions. For example, in Allegany
County, DJS reported 84 cases in FY 2009 while the juvenile
court received only 7 cases. DJS handled 979 CINS cases in
Prince George's while there were no court filings. Only 6 Maryland courts reported any CINS cases being filed in FY 2009:
Allegany, Carroll, Cecil, Frederick, Garrett, and Wicomico. (A
few other counties reported a small number of cases in FY'10
or in the past while most juvenile clerks reported never having
received a single CINS petition.) A total of 17 CINS cases were
filed in FY 2009 throughout the state.4
Maryland statistics for 2006 and 2007 show that the number of
CINS petitions were filed has decreased since 2007; 61 in 2006
and 97 in 2007, in Allegany, Carroll, Frederick, Washington and
“8 small counties”.5
Why should we care about status offenses if so few petitions
alleging CINS are filed? When a young person is found to be
CINS, the juvenile court may place the child on probation with
conditions intended to remedy the existing problems, including
orders directed toward the child and parents to participate in reSeptember 2010
Truancy
It is sad that in some foreign countries children are still struggling
for the right to basic education11 while approximately 15% of
students in Maryland do not graduate from high school.12
Although more than half of the DJS intake cases labeled as
CINS are described as truancy, 13 the rare use of CINS petitions
shows that the juvenile courts have not been used to assist with
truancy prevention in most jurisdictions. Some communities
have launched special programs for truancy prevention such as
the Truancy Mediation Program in Baltimore and the Truancy
Reduction Pilot programs in Prince George's, Harford, and in
the Lower Shore counties (Dorchester, Somerset, Wicomico and
Worcester). See, Md. Code Ann. Cts. & Jud. Proc. Art. Title 3,
Subtitle 8C. See, L. Seaton and R. Laird, Jr. , “Truancy Reduc(continued on page 14)
Section of Family & Juvenile Law 13
Status Offenses...
(continued from page 13)
tion Pilot Programs in Maryland Juvenile Courts: A Remedial
Proactive Approach by the Courts to Help Children”, Family
Law News (June 2009) at 16.14
Montgomery County has taken an inter-agency approach that
involves the schools, the State's Attorney, the child welfare
agency, DJS, police, and public housing, utilizing a truancy
review board. This has now evolved into the new truancy court
project that was announced in March 2010. 15
In 2007 the Assembly passed a bill that prohibits a provisional
driver's license (a learner's permit) from being issued to anyone
under 16 who has more than 10 unexcused absences during the
prior semester. This provision has limited effect as it only applies to those between the ages of 15 years, 9 months and 16.
See, Md. Code Ann. Trans. Art. §16-105(a)(3).16
The juvenile courts in jurisdictions without special truancy
programs are available to address habitual truancy problems
through the currently underutilized CINS petition.
Runaways
Nationally approximately 12% of the juvenile status offenses
involve running away.17 DJS intake statistics show that approximately 24% of the CINS offenses are classified as runaway.
Fifty-eight percent of the DJS runaway intake cases involve
girls.18 Runaways who have not also committed a delinquent
act present a dilemma to the system as they cannot be placed in
secure detention pursuant to Md. Code Ann. Cts. & Jud. Proc.
Art. §3-8A-15(h)(1)(i) and the federal Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. §5633 (a)(11).
some children are involved in the dependency system (“children
in need of assistance” in Maryland) as well as the delinquency
system has led the jurisdiction to adopt a collaborative approach
involving social services, juvenile services and schools as well
as a one-family-one-judge system. Although the focus of CINS
and delinquency cases is the misbehaving child, frequently the
family is in need of some of the same interventions as families
involved in abuse/neglect cases.19 In fact, many of these children
have been abused in the past.20
Conclusion: Advocates for parents and troubled children look
for help
Several frustrated parents have appeared before me, saying that
nothing happened when they went to the local office of the Department of Juvenile Services asking that something be done for
their child before violence occurred. Unfortunately, their child
was eventually brought before the juvenile court as a delinquent
after she or he had assaulted a parent. CINS petitions might have
brought these children before the court sooner.
Will DJS refer more CINS cases to the courts in the future, especially in counties where there are no special truancy projects?
Will we see more coordinated early prevention efforts extended
to the middle-school years? How many children will drop out of
school or families fracture before our agencies respond? A CINS
petition is not a panacea -- just an underutilized tool.
Richard Maslow is the Family Law Master in the Circuit
Court for Allegany County. He wishes to thank the following
for their assistance: Sara Harris, student at the University
of Baltimore School of Law; Master Leah Seaton; and, the
Clerks of the Circuit Courts of Maryland.
Habitually disobedient
Parents who consider their children to be incorrigible can file
a complaint with DJS alleging their child is CINS. However,
current statistics show that these parents are likely to have the
case resolved at the intake or informal adjustment stages because
DJS rarely files CINS petitions in most jurisdictions. This may
be unfortunate as a ninety-day informal adjustment process may
not be long enough to address the deep-seated family problems
which led the parent to seek outside help. A formal CINS adjudication and a disposition ordering the family to participate in
family counseling may provide greater assistance. In cases where
the parent-child relationship has fractured, a child may be placed
in a foster home while the parents and child use the placement
as a cooling-off period and a time for counseling.
Crossover Children
Earlier intervention can help prevent a transition from abuse/
neglect to delinquency. In some jurisdictions the recognition that
14 Section of Family & Juvenile Law
Footnotes:
1
“Gallia est omnis divisa in partes tres ....” J. Cæsar, Cæsar's
Commentaries, Books I-IV as viewed at http://www.gutenberg.
org/file/218/218.txt on July 22, 2010.
2
C. Puzzachara, et al., Juvenile Court Statistics: 2006-2007
72 (2010) (citing 2007 figures). By comparison, there were
approximately 1,666,100 delinquency cases nationally for the
same period. Id. at 6.
3
Md. Dep't. of Juvenile Services, FY 2009 Annual Statistical
Report at 18. http://www.djs.state.md.us/pdf/2009stat_reportsection1.pdf
4
Survey conducted by the author with additional assistance
from Judge Karen Jensen, Master JoAann Asparagus, Master
Althea Stewart Jones, and Master James Casey.
5
C. Puzzachara, et al., Juvenile Court Statistics: 2006-2007
115, 135.
6
M. Bush, Compulsory School Age Requirements (2009) as
(continued on page 15)
September 2010
Status Offenses . . .
(continued from page 14)
viewed at http://www.ecs.org/clearinghouse/80/44/8044.pdf
7
C.O.M.A.R. §13a.08.01.04C as viewed at http://www.dsd.
state.md.us/comar/comarhtml/13a/13a.08.01.04.htm on July
28, 2010.
8
http://www.kent.k12.md.us/index.php? option=com_content
&view=article&id=515&Itemid=206
9
In 2008 the disparity in incomes between a high school and
college graduate was $13,000 per year for men and $20,000
per year for women. http://nces.ed.gov/fastfacts/display.
asp?id=77
10
E.Garry, “Truancy: First Step to a Lifetime of Problems”, Office
of Juvenile Justice and Delinquency Prevention (Oct. 1996).
11
Article 26 of the Universal Declaration of Human Rights of
1948 states, in part, “Education shall be free, at least in the
elementary and fundamental stages. Elementary education
shall be compulsory.” United Nations, Official Records of the
Third Session of the General Assembly, Part I (A/810), p. 71.
These rights were re-stated in Article 12 of the International
Covenant on Economic, Social and Cultural Rights as, “ 2. (a)
Primary education shall be compulsory and available free to
all; (b) Secondary education in its different forms, including
technical and vocational secondary education, shall be made
generally available and accessible to all by every appropriate
means, and in particular by the progressive introduction of free
education...” G.A. res. 2200A (XXI), 21 U.N. G.A.O.R. Supp.
(No. 16) at 49, U.N. Doc. A/6316 (1966); 993 U.N.T.S. 3; 6
I.L.M. 368 (1967). See,K. Pokharel, “India Mandates Children
Go to School:Compulsory Education for All Children Ages 6
to 14 Is Part of Move to Harness Economic Potential” Wall
Street Journal (April 1, 2010)( “The number of Indian children
not enrolled in school decreased to an estimated 8.1 million
in 2009 from 25 million in 2003 ....”) http://online.wsj.com/
article/NA_WSJ_PUB:SB1000142405270230339590457515
8083085257338.html
12
The Maryland graduation rate for 2009 was 85.24%. http://
www.mdreportcard.org (2010) viewed on July 21, 2010.
September 2010
Md. Dep't. of Juvenile Services, supra.
http://www.msba.org/sec_comm/sections/family.newsletter.
FamLawJune09.pdf
15
http://www.montgomerycountymd.gov/Apps/Council/NewsAdvisories/na_details.asp?NaID=5388
16
Several states require minors to continue to attend school as
a condition of maintaining a driver's license. See, W.Va. Code
§17B-2-3a(c)(2)(E) ( A driver under age 18 is subject to a condition that she/he “[m]aintains current school enrollment and is
making satisfactory academic progress....”). http://www.legis.
state.wv.us/WVCODE/ChapterEntire.cfm?chap=17b&art=2&
section=3A#02
17
C. Puzzanchera, supra note 3. The same author in a 2007 report, “Trends in the justice system's response to status offending: OJJDP Briefing Paper,” stated that, “The runaway arrest
rate in 2005 was the lowest it has been since 1980.” Maryland's figures for intake cases designated as runaways has also
trended downwards for the period of 1996 through 2009. See,
DJS Annual Statistical Reports at http://www.djs.state.md.us/
publications.html
18
Md. Dep't. of Juvenile Services, supra note 4 at 32, 35.
19
K. Adam, “Red Rover, Red Rover, Our Youth are Crossover”
(discussing the way the court has addressed crossover problems
in Pima County, Arizona). http://www.casaforchildren.org Also
see, H. Davidson, 27 Child Law Practice 31(Apr. 2008).
20
“Studies from a number of psychological journals report that
between 75-93 percent of youth entered the juvenile justice system annually are estimated to have experienced some degree
of traumatic victimization.” Justice Policy Institute, “Healing
Invisible Wounds: Why Investing in Trauma-Informed Care
for Children Makes Sense” at 3(July 2010) http://www.justicepolicy.org/images/upload/10-07_REP_HealingInvisibleWounds_JJ-PS.pdf
13
14
Section of Family & Juvenile Law 15
case note
In Re Adoption/Guardianship of Alonza D. and Shaydon S. No 42
September Term 2009, Filed January 19, 2010
By: Master Karen R. Ketterman
Mr. D. is the biological father of Alonza D. and Shaydon S.
This opinion marks Mr. D’s second journey through the appellate courts following the termination of his parental rights as to
Alonza D and Shaydon S. by the Circuit Court for Baltimore
City. The original order granting Guardianship with the Right
to Consent to Adoption was issued February 8, 2007 and was
based in large part on the length of time the children had been
in foster care. Mr. D. appealed to the Court of Special Appeals,
which affirmed. The Court of Appeals granted cert, vacated the
decision of the Court of Special Appeals and remanded to the
Circuit Court for reconsideration in light of In Re Adoption/
Guardianship of Rashawn H and Tyrese H., 402 Md. 477, 937
A.2d 177 (2007). The Circuit Court for Baltimore City held a
hearing in July 2008 and once again terminated Mr. D’s parental
rights, finding that the length of time the children had been in
foster care constituted “exceptional circumstances” as required
by Rashawn H. The Court of Special Appeals affirmed. On cert,
the Court of Appeals addressed one question:
the parenting class due to a conflict with his work schedule and
his feeling that topics related to abuse did not apply to him. Mr.
D. was provided with visitation, which he exercised regularly
until his parental rights were terminated in 2007.
The permanency plan was changed from reunification to placement with a nonrelative in 2003 and a Petition for Guardianship
with the Right to consent to Adoption was filed on March 17,
2004. At that time both children had resided with Ms. B for
over two years. Mr. D. moved in with his girlfriend and her
four children in February 2006 and received another referral
to parenting classes, which he did not attend.
ISSUE ON APPEAL:
1. Where petitioner’s sons were involuntarily taken from
his custody and, over his objections, were kept in the
custody of a third party for six years, was it error for the
lower court to find that this period of separation between
father and sons, and the commensurate bonding between
the children and the foster mother, was an exceptional
circumstance sufficient to overcome the presumption
that it is in the best interests of the children to preserve
petitioner’s inherent rights as a natural parent to the care,
custody, and control of his sons?
The TPR hearing was held on November 2. 2006.1 The trial
judge made findings regarding the children’s safety and welfare
and the Department’s efforts at reunification with the father. He
described Mr. D’s relationship with the children as close and
positive. He contrasted that relationship with the relationship
the children had with the foster care provider, Ms. B. “...they
are in a loving relationship with Ms. [B], they feel safe, they
are both in school…and they are both living with Ms. [B] as a
family…” The judge acknowledged that Mr. D has had regular
contact with the children and contact with the foster care provider, but he had not completed parenting classes and had not
followed through with lack of follow through on “getting his
home ready.” Based upon these findings, the Judge terminated
Mr. D.’s parental rights stating that the Department had proven
by clear and convincing evidence that it was in the children’s
best interests to grant the Department’s petition.
FACTS:
Alonza D. was born to Mr. D. and Ms. S. on March 13, 2000.
His sibling, Shaydon S., was born on July 14, 2001. Mr. D and
Ms. S. separated in 2001 and the Baltimore City Department
of Social Services became involved shortly thereafter upon
receiving a report that the children (who had moved with Ms.
S into the home of her brothers) were neglected and living in
squalor. The children were not placed with Mr. D because his
home was in need of lead abatement. In early 2002 the children
were placed in foster care with Ms. B and were adjudicated as
Children in Need of Assistance (CINA) on May 6, 2002.
Mr. D. filed a Motion for Reconsideration, which was granted
and a second TPR hearing was held on February 8, 2007. At
that hearing Mr. D. testified that he was living with his girlfriend
and her children in a home with appropriate sleeping arrangements for Alonza and Shaydon and that he had been working
regularly earning $44,000 per year with medical and dental
benefits which would be available to the children. He had also
made arrangements for day care and school enrollment for the
children. Following this testimony, the trial judge adopted all
of his previous findings and terminated Mr. D.’s parental rights,
emphasizing the time the children had been in foster care.
On January 10, 2003 the permanency plan for the children was
established as reunification with Ms. S. Mr. D was referred to
a parenting program and was described as “a committed father
with positive relationship with son-good work history-needs
GED and improved parenting skills.” Mr. D. did not complete
Mr. D. appealed arguing that the trial court gave too much
weight to the bond that had developed between Ms. B. and
16 Section of Family & Juvenile Law
(continued on page 17)
September 2010
Case Note: Alonza D. and Shaydon S . . .
(continued from page 16)
the children. A divided panel of the Court of Special Appeals
affirmed. The Court of Appeals granted cert and issued a per
curium order remanding the case to the Circuit Court for reconsideration in light of In Re Adoption/Guardianship of Rashawn
H and Tyrese H., 402 Md. 477, 937 A.2d 177 (2007).
On July 29, 2008, the Circuit Court held another hearing to
consider the termination of Mr. D.’s parental rights in light
of Rashawn H and whether there was clear and convincing
evidence to suggest that Mr. D. was either an unfit parent or
that exceptional circumstances existed to allow the parent/
child bond to be severed2. The judge determined that there was
no evidence to suggest that Mr. D. was unfit. He emphasized
that the children had been in the care of Ms. B., and out of the
care of their father, for six years. He found that the length of
time the children had been with Ms. B. constituted exceptional
circumstances and that it was therefore in the children’s best
interests to terminate parental rights.
HOLDING:
1. The Circuit Court erred by failing to make explicit
findings that a continued parental relationship would
be detrimental to the best interests of the children when
concluding that “exceptional circumstances” existed under
the standard established in In re Adoption/Guardianship
of Rashawn H., to warrant terminating the Petitioner’s
parental rights.
The court discussed the Rashawn case, which requires that
the court relate specific findings pursuant to the FL §5-313
factors to a determination of parental fitness or exceptional
circumstances that would make a continuation of the parental
relationship detrimental.
The Court of Appeals found that the length of time the children
had been in care did not constitute exceptional circumstances
based upon the reasoning in McDermott v. Dougherty, 385
Md. 320, 869 A.2d 751 (2005). McDermott was an initial
third party custody case, not a termination of parental rights
case, but the key finding was that “the mere passage of time
during which Mr. McDermott and his son were separated
did not give rise to the level of exceptional circumstances
overcoming the legal presumption favoring parental custody,
especially in light of the fact that Mr. McDermott, as with Mr.
D., was a fit parent.” If the mere passage of time was insufficient to overcome the parental presumption in a third party
custody case, it is certainly not sufficient to justify a complete
termination of the parent child relationship that occurs with
the granting of a Petition for Guardianship with the Right to
Consent to Adoption.
September 2010
In a dissenting opinion, Judge Harrell states that Mr. D., unlike
Rashawn’s mother, Melissa F., had no physical or developmental burdens hindering his attempts to become an acceptable
father to these children. His absence from their lives and lack
of support was due to inaction on his part. “He cannot simply
‘park’ the children with the state and a third party custodian
and not expect circumstances to work against him.”
PRACTICAL CONSIDERATIONS
Simply using the language of Rashawn H. and giving lip service to unfitness or exceptional circumstances is not sufficient
when considering a termination of parental rights. Exceptional
circumstances or unfitness must be supported by clear and convincing evidence, and lead to an explicit finding that a continued
parental relationship would be detrimental to the best interests
of the children. Whether dealing with a TPR or an initial third
party custody case, the court and counsel must remember that
parental rights are fundamental. Foster parents or other third
party custodians do not stand on equal footing with a biological parent. A bond with a third party and/or time away from a
biological parent is not sufficient to impact the fundamental
rights of a parent.
One other item noted in the opinion was the fact that the children
were not heard in the case. The opinion seems to indicate that
evidence from the children or expert witness testimony as to the
bond with the father, could have helped the trial judge determine
whether continuation of the parental relationship would have
been detrimental to the children.
In short, parental rights are fundamental and cannot be infringed
upon without very specific evidentiary findings. Keep Rashawn
H. and McDermott v. Dougherty in your trial notebook and
you’ll be able to ensure that you’ve addressed every factor and
required finding.
Karen R. Ketterman is the Juvenile and Domestic Relations
Master for the Circuit Court for Dorchester County. Prior to
her appointment, Master Ketterman represented the Dorchester
County Department of Social Services.
Footnotes:
The hearing was continued eight times between September
2004 and November 2006 for various reasons.
2
Ms. S. had entered into a post adoption agreement and consented to terminating her parental rights before the case was
heard on remand.
1
Section of Family & Juvenile Law 17
case note
In Re Adoption/Guardianship of Chaden M., Court of Special Appeals,
No. 586, September Term, 2009
By: Master Robert E. Laird, Jr.
BACKGROUND/PROCEDURAL POSTURE:
Chaden M. was born on January 14, 2006, the son of April C. and
Saint Sydney M.* Chaden was found to be a Child in Need of
Assistance, and was put into foster care with the Baltimore City
Department of Social Services (“the Department”) on February
28, 2007. On December 1, 2008, the Department filed a Petition for Guardianship with the Right to Consent to Adoption or
Long Term Care Short of Adoption (“the Petition”). With the
Petition, the Department also filed a Request for Appointment
of an Attorney to represent April. On December 3, 2008 the
Petition and Show Cause Order were served on April. April was
required to file an Objection to the Guardianship by January 3,
2009. On December 3, the Public Defender’s Office entered
an appearance on behalf of April. A Notice of Objection to the
Petition was not filed by April’s attorney until March 3, 2009.
The Department filed a Motion to Strike Late Objection, which
was granted by the Circuit Court for Baltimore City following a
hearing. The Circuit Court then issued a written order granting
the Department’s Petition for Guardianship.
ISSUES ON APPEAL:
(1) Is there a right to effective assistance of counsel in an
action for termination of parental rights?
(2) Is the failure to file a timely Notice of Objection to a Petition for Guardianship ineffective assistance of counsel?
HOLDING:
(1) Where a party is entitled to representation in an action
for termination of parental rights, the party being represented has the right to effective assistance of counsel.
(2) The late filing of a Notice of Objection to a Petition
for Guardianship With Right To Consent to Adoption
constitutes ineffective assistance of counsel.
DISCUSSION:
Although the right to counsel is not constitutionally guaranteed
in a TPR proceeding, Maryland has created a statutory right to
counsel through Parts II and III of Title 5 of the Family Law
Article. The Public Defender Act, particularly §16-204 of the
Criminal Procedure Article, provides for representation of
indigent parents in TPR cases. The Court of Special Appeals
cited numerous cases, including Wilson v. State, 284 Md. 664,
671, 399 A.2d 256 (1979), for the proposition that “[e]ntitlement to assistance of counsel would be hollow indeed unless
the assistance were required to be effective.” Although the
cases cited all relate to criminal cases, parents deserve the same
consideration in a proceeding where there their parental rights
18 Section of Family & Juvenile Law
may be terminated, since terminating parental rights involves
a fundamental and constitutionally protected liberty interest.
Thus, where parents are entitled to be represented by an attorney in a TPR proceeding, such attorneys are required to render
effective assistance to their clients.
To determine whether effective assistance of counsel was rendered
in the instant case, the Court of Special Appeals applied the two
pronged test from Strickland v. Washington, 486 U. S. 668 (1984).
This test requires the moving party to show (1) that counsel made
errors so serious that counsel was not functioning as guaranteed
by the Sixth Amendment (the performance component), and (2)
that such errors prevented the moving party from receiving a
fair trial (the prejudice component). In doing so, the court followed the practices of most other state appellate courts that have
addressed the issue of ineffective assistance of counsel in TPR
proceedings. In reviewing counsel’s performance, the court must
be highly deferential, taking into consideration all the facts. There
is a presumption the questioned behavior by the attorney fell
within the wide range of reasonable professional assistance. To
prove that the questioned behavior was prejudicial, the moving
party must show there is a “substantial possibility that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Oken v. State, 343 Md. 256, 284 (1996).
Although the trial record does not normally illuminate the acts of
counsel sufficiently for the court to determine whether counsel’s
actions were appropriate under the Strickland test, if the critical
facts are not in dispute, direct review on appeal is appropriate
without remand for further fact gathering.
In the case at hand, the facts were not in dispute; April’s attorney
was 60 days late in filing an objection to the Guardianship. The
fact April was in jail in the days immediately preceding the due
date were not grounds to excuse the late filing. As failure to file
a timely objection is deemed consent, such a late filing prevented
April from producing evidence as to why she objected and
clearly prejudiced any chance April may have had in contesting
the Guardianship. The late filing of an Objection can never be
sound trial strategy. The case was remanded to allow April to file
a belated objection to the Petition and Show Cause Order.
PRACTICE CONSIDERATIONS:
Although this case is primarily common sense, an attorney
representing a client is required to perform at a reasonably
professional capacity. It cannot be stated too often, practicing
(continued on page 23)
September 2010
case note
In Re Shirly B., Jordon B., Davon. and Cedric B., __ Md. App. __, No. 1533, Sept. Term 2010
(Ct. of Spec. Appeals, file April 27, 2010) available at 2010 WL 16776353
(Petition for Cert. Filed 5/24/10)
By: Janet Hartge
In a recently issued opinion, the Court of Special Appeals affirmed a juvenile court’s finding of reasonable efforts and change
in the permanency plans from reunification to adoption. The
mother, who had cognitive limitations and needed specialized
services, had appealed. The Department of Social Services had
made referrals to the appropriate agencies and had attempted
to secure the services for 28 months, but the services were unavailable due to a lack of funding. The children, in addition to
having special needs, had been subjected to abuse while in their
mother’s care; and it was uncertain that even with the services,
the mother would be able to parent her children.
ISSUE ON APPEAL
Did the trial court, in a CINA proceeding, err in changing the
permanency plan of the four children from reunification to adoption and finding reasonable efforts had been made, where the
mother was referred to specialized services but those services
were not available due to lack of funding?
FACTS
The Prince George’s County Department of Social Services
began working with the appellant, Ms. B., and her five children
in 2005. In addition to lack of supervision, unsanitary living
conditions, lack of school attendance, it was alleged that Ms.
B.’s oldest child, who was not a party to this case, had sexually
abused his younger siblings. He was removed from the home
and placed with a grandparent.
The Department did not remove the other children at that time
but provided services to the family. A psychological evaluation
was obtained on the mother and revealed concerns about her
ability to effectively parent her children due to apparent cognitive limitations. Although the Department referred the mother
to Division of Rehabilitative Services (DORS) and counseling,
she did not follow through with those referrals. The Department
assisted her in obtaining housing and welfare benefits (TCA)
which the mother then allowed to lapse.
By February 2007, the family situation had deteriorated; and the
children were removed after an incident of domestic violence between the parents where Shirley, then age nine, obtained a knife
in her attempt to de-escalate the fight between her parents. The
juvenile court granted shelter care. The children were found to
be children in need of assistance (CINA) in March 2007 with the
juvenile court finding: “The home is chaotic with domestic vioSeptember 2010
lence, lack of sexual boundaries and drug use by several people
that [were] there most of the time including her father.”
The children remained in foster care; in July 2009, the juvenile
court changed the permanency plan for the children from reunification to adoption by a non-relative. Prior to this change,
the juvenile court had reviewed the permanency plan for the
children at several prior hearings.
As of September 2007 permanency planning hearing, the Department had referred the mother to a domestic violence intervention
program, to home-based parenting classes, and Melwood, an
organization that assisted individuals with disabilities. The court
found that the mother had not followed up on the services recommended by the Department. She had not attended the domestic
violence counseling and had not started parenting classes. The
mother indicated that she had left messages for Melwood but
had not received a response.
At the January 2008 permanency planning review hearing, the
juvenile court found that the mother had not followed up with
the individual counseling and parenting classes. She also had
not maintained contact with the Department.
In June 2008, the permanency planning review hearing was held
before a master. Evidence was received that the Department paid
for the mother to have twelve sessions of counseling with an
individual therapist. The therapist, however, did not recommend
additional sessions as it was unlikely that additional sessions
would make a difference. The therapist stated that there was
still an unresolved question regarding the extent that the mother
would be able to care for the children independently. The master
had recommended changing the plan to adoption, but the mother
filed exceptions. The juvenile court sustained the exceptions in
December 2008, continuing the plan of reunification.
Between December 2008 and the July 2009 permanency
planning review hearing, which was the subject of the appeal,
the Department again referred the mother for specialized
services to DORS, Melwood and Developmental Disabilities
Administration (DDA). Due to a lack of funding, none of
these programs was able to provide the mother with services
and could not predict when she would be eligible for their
services. The Department had sought funding for services for
the mother through Community Connections, but those funds
had been exhausted by January 2009. The Department also
(continued on page 20)
Section of Family & Juvenile Law 19
In Re Shirly B...
(continued from page 19)
had provided the mother with a referral to a support group for
parents with developmental disabilities and assistance in meeting her own medical needs. The Department had obtained an
additional psychological of the mother, and the psychologist
also interviewed the children.
All of the children had special needs. Shirley (age 11), Davon
(age 9), and Jordon (age 8) suffered from post-traumatic stress
due to their abusive and neglectful experiences. All three older
children reported being beaten by their father and reported that
their mother was unable to stop their father or protect them.
Cedric (age 4) and Jordon suffer from severe ADHD. Shirley
also related to the psychologist about her mother’s inability
to protect her from multiple sexual assaults by Shirley’s older
brother and about her need to assume the role of parent for her
younger siblings. Jordon and Cedric were developmentally
delayed and had “speech and articulation issues.” Shirley functioned in the borderline intellectual range and received special
educations services.
It was unclear whether the mother was still in a relationship
with the father of the children. It was clear that neither parent
had follow through with domestic violence counseling. Shirley
had reported that her father shared living space with her mother.
The mother denied this allegation, but the Department’s worker
questioned the mother’s truthfulness.
The mother had regular visitation with the children. The Department provided the mother with transportation for those
visits as she was unable to navigate the bus system. The visits, however, were at times problematic. There were several
occasions when the mother struck Davon in spite of being
instructed otherwise.
After hearing all of the evidence at the July 2009, the juvenile
court changed the permanency plan from reunification to adoption. The mother noted a timely appeal of this decision.
Ann., Fam. Law § 5-525(f) and Cts. & Jud. Proc. § 3-823(e),
quoting extensively from In re James G., 178 Md.App. 543,
943 A.2d 53 (2008). In James G., the Court of Special Appeals
reversed the lower court’s finding of reasonable efforts where
that Department had made only one referral to a vocational
program when the root cause of the child’s placement in foster
care had been his lack of housing and employment.
The CSA distinguished this case from the facts of James G.
and In re Adoption/Guardianship Nos. J9610436 & J9711031,
368 Md. 666, 796 A.2d 778 (2002) (“Case 36”). The Court of
Appeals in Case 36 reversed a termination of parental rights
where the Department of Social Services had failed to specialized services at the skill level possessed by the parent in that
case. That Department had failed to refer the parent to DDA.
In Shirley B., the Department sought services from DDA as
well as three other agencies, but the services were not available.
There was not simply one failed referral. It also was not clear
that even with assistance the mother would be able to care for
her children and their special needs, especially in light of her
inability to attend to her own needs.
The Department, under COMAR 07 .02.11.14(A), shall provide
services “to the extent that funding and other resources are available” to facilitate reunification. The Department cannot provide
those services if they are not available.
The CSA examined decisions from other jurisdictions which
had addressed the availability of services as it related to a finding of reasonable efforts. The CSA agreed with Rhode Island
that the unavailability of services is a factor to be considering
in determining whether a department has made reasonable efforts to reunify. What will constitute reasonable efforts should
be evaluated in light of what services are available. The CSA
found no abuse of discretion in changing the children’s permanency plans.
PRACTICAL CONSIDERATIONS
HOLDING
The Court held that even though the Department’s efforts to
connect the mother with services for specialized parenting
and basic living skills were unsuccessful due to lack of funding and availability, their actions had satisfied the reasonable
efforts required by the Juvenile Cause Act.
DISCUSSION
Relying upon the language of In re Adoption/Guardianship of
Rashawn H., 402 Md. 477, 500-01, 937 A.2d 177 (2007), the
CSA acknowledged that there are limits to what a department is
required to do to satisfy the reasonable efforts requirement. The
opinion examined the permanency planning statute, Md. Code
20 Section of Family & Juvenile Law
With increased budget cuts, the lack of services will be a growing
problem. In Case 36, the attorney for the parent had presented
testimony from an expert about the services that were available
to assist the parent. In Shirley B., there was no testimony that
additional services or programs were available. Practitioners
should be prepared to present evidence on this issue.
Various agencies have different levels of qualifications for services. The mother in Shirley B., according to the testimony, was
placed in a second “tier” and would not receive services until all
the individuals in the first tier had been served. It is important
for the practitioner to understand the category of service for
(continued on page 21)
September 2010
In Re Shirly B...
(continued from page 20)
which the parent is eligible. It may be necessary to challenge
that category determination, if there is a basis, in order for the
parent to receive services.
clarifies the access to these funds. The effective date of this law
is June 1, 2010 and will be codified in Md. Code Ann., Health
Gen. § 7-717.
DDA has two categories of eligible client populations, DD (developmental disability) and ISS (individual support services). If
a client qualifies for DDA services, there three further qualifications for service: crisis resolution, crisis prevention, and current
request. DDA can request that an eligible client be assigned a
service coordinator. In October 2009, due to budget cuts, DDA
had to reduce the number of clients that received service coordinators. A service coordinator can assist in accessing appropriate
services for a disabled client.
It is also critical that the parents apply early, respond to the various programs when contacted, and provide a reliable means of
contacting the parents. If the parent does not respond or cannot
be contacted, they will lose their opportunity to receive services.
Given the length of the waiting lists and the children’s need for
permanence, parents cannot afford to fail to take advantage of the
services when they are offered. Finally, if the parent is eligible,
they should apply for other benefits such as SSI.
Since July 2009, the funds, which were called “Rolling Access”
and were depleted within weeks of their availability, are now
managed under Low Intensity Support Services (“LISS”). The
2010 Legislature (HB1226/SB920) passed legislation which
Janet Hartge is the Assistant Director of Advocacy for Children’s
Rights at the Legal Aid Bureau and is based in the Baltimore
office. Prior to taking this position in Legal Aid, she represented
children in CINA cases for over 21 years in Anne Arundel
County. Legal Aid represented Shirley B. in this proceeding.
The Beverly Groner Award winner is…
The 2010 recipient of the Beverly Groner Family Law Award is Kathleen M. Dumais.
Kathleen, whose office is in Bethesda, has practiced family law for just over twenty years. In addition to her law practice,
for the last eight years Kathleen has been a member of the Maryland House of Delegates. She is the Parliamentarian of
the House of Delegates, and has served on the House Judiciary Committee for her entire tenure in the House. There, she
has tirelessly advocated for family lawyers, litigants, and the children of those litigants.
Kathleen was instrumental in shepherding the real property transfer bill through the Legislature, almost single-handedly got
the Best Interest Attorney bill through the quagmire, and continues to oversee and advocate the enactment of child custody
factors legislation. Further, she was a key member of the Department of Human Resources Child Support Guidelines
Advisory Committee, working on the behemoth retooling of the Maryland Child Support Guidelines. In the 2010 session,
under very challenging circumstances, her efforts resulted in the passage of the long-overdue update and extension of our
20-year-old matrix, more accurately reflecting Maryland’s economic realties. This was truly a Herculean task.
Kathleen also speaks around the state on issues regarding family law, attends local and state bar meetings and functions,
and looks for ways to improve the practice from a multitude of perspectives. She is also the person to whom the Governor
turns when he has questions about family law and domestic violence issues. Her statewide involvement with Maryland
family law is unparalleled.
In her free time (ha!), Kathleen spends time with her many nieces and nephews, on whom she dotes.
Many thanks to Judge Cindy Callahan for this affectionate profile…
September 2010
Section of Family & Juvenile Law 21
case note
In Re Caitlin N. No. 1604, September Term 2008, Filed May 3, 2010
By: Master Karen R. Ketterman
On April 20, 2008, Caitlin N. was taken into custody by the Easton Police Department for attempted possession of a controlled
dangerous substance. She was detained at the Waxter Children’s
Center and the Department of Juvenile Services filed a Petition
for Continued Detention in the Circuit Court for Talbot County,
sitting as a Juvenile Court, on April 22, 2008. Following a detention hearing on that date, Caitlin was continued in detention. On
May 7, 2008, she was conditionally released to her mother with
electronic monitoring.
The State filed a Juvenile Petition on May 13, 2008, alleging
that Caitlin N. was a delinquent child for having been involved
in the attempted possession of marijuana. The Respondent’s
mother was served with the Juvenile Petition on May 23, 2008,
but the Respondent could not be served on that date.
The Office of the Public Defender entered an appearance on
behalf of the Respondent on May 22, 2008. On June 10, 2008,
Caitlin’s attorney filed a “Demand for Presence of Chemist,
Analyst, or Person in Chain of Custody” as well as a “Motion
to Hold Adjudicatory Hearing within Sixty (60) Days.” The
Juvenile Court denied the Motion to Hold Adjudicatory Hearing
by Order dated June 11, 2008.
On June 26, 2008, Caitlin was served with the Juvenile Petition and the Court proceeded with the adjudicatory hearing on
that date. Following testimony from the arresting EPD officer
and the Maryland State Police chemist, she was found to be
involved. Disposition was held on July 17, 2008 and Caitlin
was determined to be a delinquent child and placed on supervised probation.
ISSUES ON APPEAL:
1. Did the court below err in denying Appellant’s “Motion
to hold Adjudicatory Hearing Within Sixty Days”?
2. Did the juvenile court err in ruling that the State was not
required to provide the name of the chemist in discovery?
3. Was the evidence legally insufficient to sustain the finding that Appellant was involved in the delinquent act of
attempted possession of marijuana?
FACTS:
On April 20, 2008, Patrolman First Class Larimore conducted
surveillance on Caitlin N. and a group of individuals (identified
as Mushaw, Horney and Sinclair) in front of 112 N. Washington
Street in Easton. PFC Larimore heard Caitlin N. tell Mushaw
to “ask him”. Mushaw then asked Horney, “Do you have any
weed?” to which Horney replied “No, I’m trying to score some
myself”. Another individual, Sinclair, arrived a few minutes later
and PFC Larrimore heard Cailtin say, “Hey, do you have any
22 Section of Family & Juvenile Law
weed? You should let me buy a gram from you. Would you let
me buy a gram?” PFC Larimore then saw Caitlin take an item
from her purse, hold it in her hands and attempt to give it to
Sinclair. Mushaw and Sinclair discussed how to smoke the weed
and Mushaw said that he would buy a soda and empty it so that
they could smoke using the can. Caitlin, Mushaw, Sinclair and
Horney were then taken into custody and the police recovered a
clear Ziploc baggie containing three smaller baggies with green
vegetable matter in Sinclair’s front pocket. The matter was tested
and determined to be 1.8 grams of marijuana. No marijuana was
found on Caitlin.
Caitlin remained in detention from April 20, 2008 until May 7,
2008. A juvenile petition was filed on May 13, 2008 and served
on Caitlin on June 26, 2008. At the June 26, 2008 adjudicatory
hearing, the court denied the respondent’s request to exclude
the chemist’s testimony. Based upon testimony from PFC Larimore and the chemist, Caitlin was found to be involved in the
attempted possession of a controlled dangerous substance. At the
disposition hearing held July 17, 2008, Caitlin was committed
to the custody of her sister under the supervision of the Department of Juvenile Services with standard conditions and special
conditions, which included continued mental health treatment
and education. She noted a timely appeal.
HOLDING:
1. The denial of the Motion to Hold Adjudicatory Hearing
Within Sixty (60) Days was proper. Pursuant to Maryland
Rule 11-114(b)(1), the adjudicatory hearing was held within
sixty (60) days after the juvenile petition was actually
served on the respondent. In this case, Caitlin’s mother
was served with the petition on May 23, 2008, but Caitlin
was not served until the day of the Adjudicatory Hearing,
June 26, 2008.
Caitlin’s attorney argued that she had received formal notice of
the allegations at the April 22, 2008 detention hearing and urged
the court to find that the sixty-day time period started on that date.
Under this scenario, the adjudicatory hearing should been scheduled on or before June 20, 2008. The appellate court disagreed.
Under the plain language of the Rule, the sixty-day time period
begins when the petition is served on the respondent, not when
the juvenile is put on notice that a petition may be authorized.
The court went on to state that, even if there had been a violation of Rule 11-114(b)(1), dismissal would not have been an
appropriate sanction under the facts of the case. “We view the
appellant’s claim as elevating form over substance, because there
clearly was no inordinate delay in this case”. The adjudicatory
(continued on page 23)
September 2010
Case Note: In Red Caitlin N...
(continued from page 22)
hearing was held only six days after the deadline suggested by
Caitlin’s counsel.
2. While the State’s failure to supplement discovery as to
the chemist may have been a violation of Maryland Rule
11-109(a)(3), any error was harmless.
The chemist was produced by the State in response to the
written request of Caitlin’s counsel and the chemist’s report
was provided seventeen (17) days prior to trial. Counsel did
not request a continuance to prepare cross-examination of the
chemist. The Court found that the respondent was not denied
her right to confrontation as there was no indication that her
ability to question the chemist at trial was limited or restricted
by the juvenile court. Therefore, the trial court properly exercised discretion in permitting the chemist to testify because
Caitlin had not been prejudiced by the failure to disclose his
name in discovery.
3.The evidence was sufficient to support a rational inference
that Caitlin engaged in multiple substantial steps toward
the commission of possession of a controlled dangerous
substance, marijuana.
weed. Upon arrest the police recovered 1.8 grams of marijuana
from Sinclair.
PRACTICAL CONSIDERATIONS
This case contains a summary of juvenile court purposes and
procedures that would be instructive to a new practitioner.
The overall theme of the opinion is “no harm/no foul”. Violations of procedural or discovery rules do not automatically
require dismissal--or any sanction at all. Citing Thomas
v. State, 397 Md. 557 (2000), the Appellate Court makes
reference to the dismissal of a petition as a “windfall” for
a respondent.
Despite the use of the word “shall” in Rules 11-109 (a)(3) and
11-114(b)(1), a violation without articulated actual prejudice
is considered to be harmless. When requesting that a sanction
be imposed for violation of a procedural rule in the juvenile
court, the juvenile’s attorney must show actual prejudice to the
respondent as a result of the violation.
Karen R. Ketterman is the Juvenile and Domestic Relations
Master for the Circuit Court for Dorchester County.
Pursuant to In re Timothy F., 343 Md. 371, 388 (1996), “evidence is legally sufficient in a juvenile delinquency case if, after
viewing the evidence in the light most favorable to the [State],
any rational trier of fact could have found the essential elements
beyond a reasonable doubt.” The weight given to the evidence
and assessment of the credibility of witnesses is within the sound
discretion of the trial court.
In this case, PFC Larimore testified that he watched Caitlin and
several other individuals on a well-lit street where he could hear
their conversations. He heard Caitlin ask Sinclair if he had any
weed, and whether he would let her buy a gram. After asking to
buy a gram, Caitlin was seen retrieving an item from her purse
and trying to hand it to Sinclair. She was also heard talking with
Sinclair and another individual about how they would smoke the
Case Note: Chaden M . . .
(continued from page 18)
attorneys must ensure that filing deadlines are not missed. An
overlooked filing date can mean serious prejudice to your client
and embarrassment or worse to yourself.
County. Prior to his appointment to his current position, Master
Laird represented the Somerset County Department of Social
Services in CINA cases for more than fifteen years.
Master Robert E. Laird, Jr., is the Standing Master for Domestic
Relations and Juvenile Causes in the Circuit Court for Somerset
* Saint Sydney M. consented to the adoption and was not a
party to the appeal.
September 2010
Section of Family & Juvenile Law 23
case note: henriquez redux
Henriquez v. Henriquez. No. 81, September Term 2009. Maryland Court of Appeals
By: Nick Orechwa
THE PROVISIONS OF MARYLAND FAMILY LAW ARTICLE
§ 12-103 DO NOT PRECLUDE THE TRIAL COURT FROM
AWARDING ATTORNEY’S FEES TO A LITIGANT WHO IS
REPRESENTED BY A NON-PROFIT LEGAL SERVICES ORGANIZATION OR A PRO BONO WITHOUT THE EXISTENCE
OF A FEE AGREEMENT OR THE PAYMENT OF FEES BY THE
LITIGANT TO THE ATTORNEY AND/OR ORGANIZATION
In doing so, the Court quite astutely pointed to a plethora of
decisions in others states of the union which have held that
providers of pro bono legal representation (including nonprofits) are eligible to receive attorney’s fee awards in family
law cases. Unhappy with the decision of the Court of Special
Appeals, Husband noted an Appeal to the Maryland Court of
Appeals which granted certiorari.
In its September 2007 term the Maryland Court of Special Appeals had occasion to consider the issue of whether the provisions Maryland Family Law Article § 12-203 do not preclude
the trial court from awarding attorney’s fees to a litigant who is
represented by a non-profit legal services organization or a pro
bono attorney without the existence of a fee agreement or the
payment of fees by the litigant to the attorney or organization.
In addition, it examined whether said award should be paid to
the litigant or the organization. The case which brought the issue
before the court was Henriquez v. Henriquez.
The Court of Appeals affirmed the decision of the Court of
Special Appeals. The Court’s decision primarily addressed two
main issues: 1) Whether Maryland Family Law Article § 12-103
permits an award of attorney’s fees to a litigant with pro bono
legal representation; and 2) whether the under §12-103 the court
is permitted to award the fees directly to the pro bono attorney
(or organization) as opposed to the litigant.
In Henriquez, the parties appeared before Judge Durke Thompson of the Montgomery County Circuit on Ms. Henriquez’s
(Wife’s) complaint for Absolute Divorce which included,
inter alia, prayers for custody, support, and attorney’s fees. A
private attorney represented Mr. Henriquez (Husband) and the
House of Ruth represented Wife. At the Wife’s deposition, her
House of Ruth counsel stated “We don’t charge money for our
hourly legal services” however, she added that the Wife could
be charged for expenses at the conclusion of the trial. On the
first day of trial, Wife’s attorney introduced into evidence a
bill documenting 58.34 hours of work on Wife’s behalf at a
rate of $200.00 per hour amounting to a total of $11,668.00.
Husband testified he paid his attorney $5,000.00 to represent
him at trial.
The trial court awarded attorney’s fees to the House of Ruth
in the amount of $5,000.00, reasoning that the $5,000.00 paid
by Husband to his attorney “…represents an exceptionally
reasonable amount and I make an award of a similar amount
to, for counsel fees…” Unhappy with the trial court’s ruling
on the issue of fees, Husband noted an appeal to the Court of
Special Appeals.
In a reported opinion, Henriquez v. Henriquez 185 Md. App.
465, 971 A.2d 345 (2009) the Court of Special Appeals affirmed the trial court’s ruling. In particular, the Court held
that Maryland Family Law § 12-103 contains “no per se bar
to awarding attorney’s fees to a party who is represented by a
non-profit organization that provides the party with free legal
representation.” Furthermore, the Court affirmed the Trial
Court’s decision to award the fees directly to the House of Ruth.
24 Section of Family & Juvenile Law
With regard to the first issue, the Court engaged in a simple
statutory interpretation analysis in order to arrive at its conclusion. The court reasoned:
The plain meaning of Section 12-103 permits the award of
attorneys’ fees in the present case, because ‘counsel fees’
are limited only to that which ‘are just and proper under
all the circumstances.’ The only other statutory mandate
that restricts a court’s award of attorneys’ fees is contained
in Section 12-103(b), which enumerates considerations
a court must weigh before awarding fees
***************************************
There is no language restricting an award to fee paying
clients; in fact the considerations of financial status
and need belie the necessity that an attorney must have
been remunerated.
The Court rejected Husband’s argument that the Black’s Law
Dictionary definition of attorney’s fees is “the charge to a client
for services performed for the client…” A dictionary definition,
the court held citing case law, is not dispositive of the meaning
of a statutory term.1 To do so the Court reasoned, would require
it to insert language into the statute to fill gaps ostensibly overlooked by the General Assembly -- something the courts have
ruled time and again they are not permitted to do.
Husband cited a North Carolina case Patronelli v. Patronelli,
623 S.E. 2d 322 (N.C. Ct. App. 2006) which denied an award
of attorney’s fees to a Wife represented by a pro bono attorney
in a domestic relations matter and held “counsel fees cannot, by
definition, be implicated in the present case where the dependent
spouse never incurred counsel expenses.” The Court however,
(continued on page 28)
September 2010
case note
Jason Brandenburg, ET UX. V. David LaBarre, ET UX.
By: Susan Wyckoff, Esquire
In the reported opinion, Jason Brandenburg, et. ux. v. David
LaBarre, et. ux., No. 2080, September Term, 2009, filed on June
2, 2010, the Court of Special Appeals of Maryland found that
the trial court erred in finding that exceptional circumstances
existed and that an award of grandparent visitation rights was
not justified as the grandparents had failed to meet their burden
of proof that their grandchildren were harmed by the cessation
or absence of visitation. The Court reversed the grandparent
visitation order and remanded the case for entry of an order
denying the petition for visitation.
BACKGROUND AND PROCEDURAL HISTORY:
Jason and Nicole Brandenburg were married on June 2, 1998.
As a result of their marriage they had four children, namely:
Tyler, born July 7, 1998; Zachary, born September 14, 2001;
Matthew, born August 9, 2004; and Jordan, born May 18, 2007.
Laura and David LaBarre are the paternal grandparents of the
Brandenburg children.
From 2004 until June of 2006, the LaBarres occasionally provided
childcare for Tyler, Zachary and Matthew. During this time period,
Jason worked full-time for BGE Home and Nicole was employed
part-time for various employers. In June of 2006, Nicole became
a full-time employee of SunTrust Bank in Annapolis, initially
working from 8:30 a.m. until 3:00 p.m., and later until 5:00 p.m.
Tyler, Zachary and Matthew would also spend time with the
LaBarres on weekends and holidays when possible.
From June of 2006 through February of 2008, Laura provided
free childcare for Tyler, Zachary, Matthew, and for seven of the
eighteen months, Jordan. There was an eight-week period following Jordan’s birth in May of 2007, that Nicole was on maternity leave and Laura did not provide childcare for the children.
During this time period, Matthew and Jordan would also spend
Sunday night at the LaBarre home. Tyler and Zachary did not
spend the night because they were in school from September
through June. Laura did not work. David worked full-time
for a roofing and siding company, including many Saturdays.
David did assist in caring for the children in the evenings and
on weekends when they were at his house.
In February of 2008, the parties had a falling out unrelated to the
children, which resulted in David telling Jason that Laura would
no longer provide free childcare. Jason and Nicole then ceased
all contact between the LaBarres and the children.
On April 23, 2008, the LaBarres filed a Complaint to Establish
Visitation Rights with the Circuit Court for Anne Arundel County,
Case No. 02-C-08-131289. In their Complaint, the LaBarres alSeptember 2010
leged exceptional circumstances. On June 16, 2008, the Brandenburgs filed an Answer and later filed a Counter-Claim for Abuse
of Process: Bad Faith Proceedings Pursuant to 1-341.
On June 16 and 17, 2009, the case was tried. Closing arguments
were heard on August 10, 2009. In addition to the parties,
twenty-three witnesses testified at trial.
The LaBarres did not dispute the fitness of Jason and Nicole
as parents, but instead argued that exceptional circumstances
existed justifying an award of visitation. The LaBarres presented evidence to support their character, the nature of their
loving and bonded relationship with their grandchildren, and
the care provided on a nearly continuous basis from 2004 until
2008. The Brandenburgs presented evidence to support their
character, the character of the LaBarres, and the present wellbeing of the children.
The Brandenburgs testified that the LaBarres had provided childcare for the children for the eighteen-month period beginning in
June 2006, but that otherwise, the children’s interactions with
them were occasional. They asserted that their decision to cease
contact between the children and the LaBarres was based on the
LaBarres’ habitual marijuana use; and David’s use of alcohol
and use of physical discipline on the children. The LaBarres
admitted to occasionally smoking marijuana. In addition, the
Brandenburgs testified that Laura suffered from bipolar disorder
for which she was not currently taking medication. Laura admitted that she suffers from bipolar disorder. The Brandenburgs
also presented testimony that all four children were doing very
well since contact with the LaBarres had ceased.
On October 28, 2009, the Circuit Court entered an Order granting the LaBarres visitation with the children one overnight per
month and one week each summer. The trial court ordered the
LaBarre’s to refrain from any use of alcohol or illegal substances
during visits and to follow the instructions of the Brandenburgs
concerning the children’s supervision and care. The trial court
found the evidence presented by the LaBarres credible, and the
evidence presented by the Brandenburgs to be lacking in credibility. The trial court found Laura to be in control of her bipolar
disorder and that condition and that it did not affect her ability
to care for the children. The trial court found that the LaBarres
had met their burden of proof in establishing exceptional circumstances and that it was in the best interests of the children
to have visitation with their grandparents. The Brandenburgs
appealed presenting two questions to the Court, which the Court
combined into the issue below.
(continued on page 26)
Section of Family & Juvenile Law 25
Case Note: Jason Brandenburg...
(continued from page 25)
ISSUE ON APPEAL:
Did the circuit court err in finding that exceptional circumstances
existed; justifying an award of grandparental visitation rights?
HOLDING:
The circuit court did err in finding that exceptional circumstances
existed, permitting the circuit court to substitute its judgment of
the best interests of the children for that of the parents.
DISCUSSION:
The Court of Special Appeals began its discussion with a review
of Koshko v. Haining, 398 Md. 404 (2007). The Court analyzed
the affect of Koshko on the standard for visitation determinations pursuant to the Maryland Grandparents Visitation Statute
(hereinafter referred to as “GVS”), Md. Code (2006 Repl. Vol.,
2009 Supp.), Section 9-102 of the Family Law Article. Maryland’s GVS was enacted in 1981, and amended in 1993, years
before Koshko, and years before Koshko’s predecessor, Troxel
v. Granville, 530 U.S. 57 (2000). In Troxel, the United States
Supreme Court held that to apply a Washington state grandparent
visitation statute without deference to a fit parent’s decision to
deny or limit visitation is unconstitutional.
In Koshko, the Court of Appeals agreed that the Court of Special
Appeals had construed the Maryland GVS to include an application of the parental presumption saving the statute “from per se
constitutional infirmity.” Koshko, 398 Md. at 428. However,
that was not enough of a safeguard to protect parental rights in
grandparent visitation disputes. In addition, the Court of Appeals
found that grandparents seeking visitation are first required to
show prima facie evidence of parental unfitness or exceptional
circumstances suggesting current or future harm to the child if
visitation is denied before the trial court may analyze a child’s
best interests. Id. at 444-445.
26 Section of Family & Juvenile Law
On page nine of the Reported Opinion of Brandenburg, the Court
stated that “Parents and grandparents do not stand on the same
legal footing with respect to visitation. A parent’s right to visitation is rooted in a fundamental constitutional liberty interest,
while any right to visitation possessed by grandparents ‘is solely
of statutory origin.’” citing Koshko, supra, 398 Md. at 423. A
finding of current or future detriment to the children “must be
based on solid evidence in the record, and speculation will not
suffice.” Aumiller v. Aumiller, 183 Md. App. 71, at 81-82. In
Brandenburg, the Court found that the trial court erred as a matter
of law in concluding that the grandparents had met their burden
of proof of the existence of exceptional circumstances. The
Court stated that the “bar for exceptional circumstances is high
precisely because the circuit court should not sit as an arbiter
in disputes between fit parents and grandparents over whether
visitation may occur and how often.”
The Brandenburgs provided testimony that the children were
thriving since the cessation of visitation. The LaBarres offered
no evidence of significant deleterious effect to the children
caused by the termination or nonexistence of visitation. The
trial court was not permitted to infer that the children had suffered any harm simply because they had previously spent so
much time with the LaBarres. Having no proof offered of a
significant deleterious effect the trial court erred in finding
exceptional circumstances. In this case, the Court of Special
Appeals, reaffirmed the strong constitutional right of parents to
make decision for their children regarding grandparent visitation. In Brandenburg, the Court affirmed that without prima
facie evidence of parental unfitness or exceptional circumstances
suggesting current or future harm to the child if visitation is
denied, the trial court need not move on to analyze a child’s best
interests, and must defer to the parents’ wishes
Susan Wyckoff is a director of the law firm of Council, Baradel,
Kosmerl & Nolan, P.A., in Annapolis, Maryland. Her practice
focuses primarily on domestic relations law and civil litigation.
September 2010
Wading into Deep Water:
The U.S. Supreme Court Addresses International Family Law- Abbot v. Abbot,
560 U.S. __, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010)
By: Hadrian Hatfield
In May 2010 the U.S. Supreme Court for the first time addressed
the 1980 Hague Convention on the Civil Aspects of Parental
Child Abduction (“Convention”). This case examined the key
issue of what constitutes a “right of custody” under Article 5
of the Convention.
In so doing the Supreme Court resolved a conflict between the
Circuit Courts, expanded the right to return of a child under the
Convention, recognized rising Justice Sotomayor, and added
to the debate on how much weight should be accorded foreign
court decisions. It also highlighted the increasing importance
and frequency of Convention issues in family law cases.
The case in question is Abbott v. Abbott, 560 U.S. ____, 130
S.Ct. 1983, 176 L.Ed.2d 789 (2010). This case stemmed from a
mother’s removal of a child from Chile, where the father’s only
relevant legal right was to consent before the mother could take
the child out of the country. The family had been living in Chile
for approximately three years when the mother took the child
to Texas, without permission of the father or the Chilean family
court. The father started an action in U.S. District Court in Texas
for return of the child to Chile under the Convention and ICARA
(the implementing legislation in the United States).
The single legal question presented by this case was whether under
the Convention the father’s ne exeat right was a “right of custody,”
or merely a “right of access.” The Convention protects parents who
have a “right of custody” from wrongful removal or retention of a
child in a contracting state by the other parent. The remedy for such
a wrongful removal or retention generally is return of the child to the
country of habitual residence. This remedy, though, is unavailable
for breach of a mere “right of access.” Thus, in this case, return of
the child was not required under the Convention unless a “right of
custody” included the father’s ne exeat rights.
This legal question made it to the U.S. Supreme Court because
the federal circuit courts in the United States had split in their
response to this issue. The prevailing view at the U.S. District
Court and on appeal to the Fifth Circuit Court of Appeals in this
case followed Croll v. Croll, 229 F.3d 133 (2000), which held
that ne exeat rights are not rights of custody under the Convention. At the time, this was the accepted interpretation in the
Second, Fourth, and Ninth Circuits. Only the Eleventh Circuit
had followed the view espoused by the dissent in Croll, written
by Judge Sotomayor, that ne exeat rights were within the rights
of custody protected by the Convention.
The U.S. Supreme Court majority opinion, delivered by Justice
Kennedy, relied on a number of bases for finding that ne exeat
September 2010
rights qualify as rights of custody under the Convention. First, the
Court looked at the wording of the Convention and at the content
of ne exeat rights under Chilean law. It determined that the Chilean
ne exeat right included the right to decide the child’s country of
residence, since the legal provision meant that neither parent could
unilaterally establish the child’s place of residence. The Court
compared this favorably with the Convention definition of “right
of custody,” which explicitly includes “in particular, the right to
determine the child’s place of residence.” The Court dismissed the
argument that a ne exeat right does not fit within traditional notions
of physical custody by noting that the Convention contains a specific definition for “right of custody” as used in the Convention. It
similarly dismissed the argument that since a ne exeat right cannot
be “exercised” as that term is used in the Convention, that it thus
cannot be a “right of custody.” The Court reasoned that the exercise
of the right is in the refusal to consent to removal of the child. It
also concluded that to rule otherwise would render the Convention
meaningless in just those cases where it was most needed.
The Court next relied on the view of the U.S. Department of State,
expressed in its amicus brief, that ne exeat rights are rights of custody.
It noted that the Executive Branch’s view of a treaty historically is
entitled to “great weight.” It further stated that the Department of
State, as the central authority under the Convention, was uniquely
positioned to understand the consequences of different treaty interpretations on other contracting states and on the ability to obtain the
return of children wrongfully removed from the United States.
The Court then noted the views of other Hague Convention
countries and of international law scholars on the issue. It found
that the majority of foreign courts, especially from commonlaw countries, had adopted the view that ne exeat rights were
rights of custody. It cited cases from England, Israel, Australia,
Scotland, South Africa, Austria, and Germany. Interestingly, the
Court also noted that joint custodial arrangements were largely
unknown at the time the Convention was drafted, and that the
status of ne exeat rights was not well understood. In that context, it found the views of the majority of subsequent scholarly
articles informative. These supported the observation that joint
custody has become common in the time since the Convention
was first drafted, and that within this joint custody framework
most scholars recognize ne exeat rights as being rights of custody
under the definition used by the Convention.
Finally, the majority decision concluded that its interpretation of
rights of custody was consistent with the objects and purposes
of the Convention. It specifically cited the dissenting opinion
(continued on page 28)
Section of Family & Juvenile Law 27
Wading into Deep Water...
(continued from page 27)
by Judge Sotomayor in Croll to support the view that a different
interpretation would allow parents to undermine the purpose of
the Convention. It also relied on psychological opinions of the
harm caused from wrongful abduction of children by parents to
illustrate how deterrence of such abductions was a goal furthered
by including ne exeat rights within rights of custody.
This case is noteworthy for a number of reasons. First, of course,
it definitively decides in U.S. jurisprudence that a right of ne exeat qualifies as a protected “right of custody” under the Convention. As such, practitioners will surely add petitions for writs of
ne exeat to the domestic violence petitions already in their Hague
Convention arsenals. And in turn, courts throughout the United
States likely will face an increased demand for these esoteric
writs. More jurisprudence likely will result also from efforts
to refine whether a simple award of joint legal custody, without
more, provides the right to veto a change of residence.
The case also is noteworthy because the Court demonstrated
an understanding for how family law is developing. The
opinion shows the nation’s highest Court considering the
evolution of joint custody, and relying on psychological input
in custody matters.
The case furthermore will surely add to the debate on the appropriate weight judges should give international law and the
judicial opinions of courts from other countries when interpreting
U.S. law in the international arena.
And the case illustrates the growing importance and frequency
of international issues in family law cases. As such, this first
opinion from the Supreme Court interpreting the Hague Convention provides a good introduction for family law practitioners
who have only passing knowledge of this essential text.
Hadrian Hatfield, with Shulman, Rogers, Gandal, Porty & Ecker,
P.A., in Potomac, Maryland, concentrates his practice on family law litigation and mediation in Maryland and D.C., with an
emphasis on international family law issues.
Case Note: Henriquez...
(continued from page 24)
points out that case, from the North Carolina intermediate appellate court was overruled, at least on that point by the North
Carolina Supreme Court which held:
At any time that a dependent spouse would be entitled
to alimony…or post separation support…the court may,
upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be
paid and secured by the supporting spouse in the same
manner as alimony.
Patronelli v. Patronelli, 636 S.E. 2d 559, 560 (N.C. 2006) (Emphasis in the original)
12-103, the Maryland Court of Appeals notes, differs because it
contains no mention of “for the benefit of [a dependent] spouse.”
The court also rejected Husband’s argument under Mason v.
Mason 181 Md. 666, 30 A.2d 748 (1943) that reimbursement
for a gratuity (e.g. pro bono legal services) was not permitted in
family law cases. In Mason, the court noted, the Husband only
owned a modest farm and had no other financial means while the
Wife was earning some money and living rent free. Whereas in
Henriquez the Wife was “wholly dependant” and “virtually penniless” which given the Husband had financial ability rendered
an award of attorney’s fees appropriate (a determination the trial
judge had appropriately made under 12-103(b)).
28 Section of Family & Juvenile Law
The second issue the Court of Appeals tackled was whether the
trial judge properly awarded attorneys’ fees directly to the House
of Ruth. In holding that ruling to be proper, the court held that
although 12-103 does not specifically permit an award directly to
counsel, the other statutes in the Family Law article, namely 7-107,
8-214, and 11-110 do. As such, they “comprise a family law scheme
and are in pari materia so that they are construed ‘by reference to
other statues dealing with the same subject.” As such, the court
concluded 12-103, must be construed in “harmony” with 7-107,
8-214, and 11-110 to prevent the illogical result of permitting an
award of attorney’s fees directly to an attorney in circumstances in
family law cases, while not permitting it in others.
Nick Orechwa is an associate with Brodsky, Renehan, Pearlstein,
Lastra & Bouquet Chtd in Gaithersburg, Md. He is licensed to
practice in Maryland, Louisiana and the District of Columbia.
Footnotes:
The Court noted that other dictionaries such as Ballentine’s
Law Dictionary have no such mention of a “charge to a client”.
“Ballentine’s defines ‘attorney’s fee’ as ‘[a]n allowance made
by the court as costs in addition to the ordinary statutory costs.’
Ballentine’s Law Dictionary 109 (3rd ed. 1969).”
2
The Court noted that other dictionaries such as Ballentine’s
Law Dictionary have no such mention of a “charge to a client”.
“Ballentine’s defines ‘attorney’s fee’ as ‘[a]n allowance made
by the court as costs in addition to the ordinary statutory costs.’
Ballentine’s Law Dictionary 109 (3rd ed. 1969).”
1
September 2010
case note
Boemio v. Boemio and the Evolving Use of Alimony Guidelines in Maryland
By: Jim Milko
Lawyers – for the most part – love predictability.
In a broad sense, a fundamental reason for a society to adopt
rules of law is to foster predictability and stability in the conduct
of its citizens, government, and private entities.
In a more narrow sense, the ability of an attorney to ascertain
predictability in legal outcomes aids the practitioner in a variety
of ways. For example, the attorney’s ability to predict specific
legal outcomes in a given situation generally instills greater
confidence on the part of the client in the legal counsel. After all,
how comfortable can a client really feel when her attorney says,
“Gee, I really don’t have a clue about what’s going to happen
when we go to Court”? Further, the attorney’s ability to predict
specific, potential outcomes enables the client to make more
informed and rationale decisions regarding his or her case.
Of equal import, there is a direct relationship between the
predictability of legal outcomes and the abilities of parties and
counsel to reach out-of-court resolutions concerning their disputes. Obviously, as the outcome of a legal dispute becomes
more predictable, the field of negotiation narrows and a settlement resolution becomes more likely.
The benefits of predictability are no less germane to the world
of family law than to any other legal arena. Indeed, at the very
first consult the domestic relations practitioner typically attempts
to provide the prospective client with an assessment of how
the law might apply to the particular facts of the client’s case.
Regarding the financial issues raised in any given divorce, the
attorney’s presentation may go something like this:
With respect to child support, the attorney asks for information
regarding the parties’ gross incomes, work-related child care,
and any other information that is pertinent to the application of
the Maryland Child Support Guidelines. The attorney inputs this
information into the handy child support programs that we all
have on our computers, and voila! – the attorney awes the client
with her ability to predict the likely child support obligation in
the case down to the very dollar!
With respect to marital property issues, the attorney is a bit
more circumspect. The attorney explains the concept of marital
property to the client. The attorney further explains the process
of how the Court identifies marital property, values it, and subsequently considers the appropriateness of a monetary award.
Here, the attorney is careful to relate that unlike many states,
Maryland law mandates an “equitable” distribution of marital
property interests, as opposed to an “equal” division. That being said, however, the attorney likely goes on to convey that
September 2010
a generally “equal” distribution of marital property tends to
be more of the norm than the exception in divorce cases. The
attorney then concludes this process by examining the specific
marital assets and liabilities in the client’s own situation, and
she provides the client with some estimate of what a possible
marital property award in the case might look like. Although the
lawyer’s dollar figures in this approximation might be somewhat
less specific than with the child support calculation, the client
remains nonetheless impressed.
Then the attorney moves on to the subject alimony...
Here, suddenly, the attorney begins to hem and haw. The lawyer outlines the statutory considerations that a trial Judge must
weigh in any alimony determination, but she provides no real
guidance as to how specifically each of these factors will result
in any precise dollar award. She repeatedly refers to terms like
“trier of fact” and “judicial discretion”. In the final analysis,
the attorney is, at best, only willing to offer a caveat-laden,
wide-ranging, and vague guesstimate regarding a possible range
of alimony – in both duration and amount. The client simply
stares slack-jawed like a deer in headlights. Predictability, like
Elvis, has left the building.
While the above-scenario might be a bit of an exaggeration, it
underscores the basic premise: Alimony, in the state of Maryland,
is a wildcard. Despite the existence of the mandatory alimony
considerations outlined in Section 11-106 of the Maryland Family Law Article and a variety of (sometimes conflicting) appellate
caselaw, the best prediction tools regarding an alimony award in
any given case may well be the attorney’s own practice experience and her familiarity with the predilections of the specific
chancellor in the case.
On May 11, 2010 however, the Court of Appeals issued an opinion in the case of Boemio v. Boemio, No. 57, September Term
2009, that may constitute a ‘first-step’ towards greater predictability concerning alimony awards in the State of Maryland.
Boemio v. Boemio and Alimony Guidelines
Development of the Guidelines
In recent years, the lack of predictability and uniformity with
respect to spousal support/alimony awards has been an issue of
concern among practitioners, jurists, legislators, scholars, and
litigants throughout the United States. As a result, a number
of jurisdictions, advocacy groups, and professional organiza(continued on page 32)
Section of Family & Juvenile Law 29
A Letter to the Editor
Walter A. Herbert, Jr., Esquire
Editor, Family Law News
Maryland State Bar Association, Inc.
[email protected]
Dear Editor:
Carolyn Thaler answers her question, “Second Parent Adoption- Is it Legal in Maryland?” with the emphatic statement, “… the current law does not permit a second parent adoption”, a resounding “No”. The article in Family Law
News, April 2010 misses some points that suggest the issue is more debatable than her analysis allows.
There is no dispute with the principle that adoption exists only by virtue of statute. How courts interpret and apply
the statute is not so rigidly set.
Thaler asserts that, when some nisi prius courts in this State finalize second -parent adoptions by terminating “the
parental rights of the biological parent and then allowing the couple to adopt as if they are both unrelated to the
child”, it is voidable. She bases her position on the Court of Appeals’ decision in Green v. Sollenberger, 338 Md.
118, 656, A.2d 773 (1995), where the Court stated that “the General Assembly never intended for natural parents
to be permitted to adopt their own legitimate children.”
The Sollenberger case is inapposite. It was a misguided attempt by the biological mother to terminate the natural
father’s rights of legitimate children born in wedlock. Even though the father agreed to the adoption, there are
strong societal reasons against allowing a natural parent to solely adopt her own legitimate children and thereby
terminate the rights of the father, which may not have been in the best interest of the children. The ruling does not
justify the leap that Thaler takes when she concludes that the only proper adoption is one by an unrelated person
or a step-parent.
Perhaps some judges use such a legal fiction to effect a second-parent adoption, terminating the natural parent’s rights
and then granting an adoption by the same–sex partners. I and others have approached the issue differently.
Under Family Law Article § 5-331(b)(2), a single person can adopt even when two unmarried petitioners, one the
child’s legal parent, jointly petition to adopt. In re Adoption No. 90072022/CAD, 87 Md. App.630, 590 A.2d 1094
(1991). In that case the Court of Specials Appeals ruled that because the adoption law clearly does not require that
an adopting person be married, the petitioners, otherwise fit, could adopt in the best interest of the child.
Generally, adoption under the statute entitles the adoptive parent to all the rights and privileges of and is subject
to all the obligations of a biological parent and divests the biological parent of all duties, obligations and rights
to the child. Family Law Article § 5-341(a)(2)(ii). This divestiture provision protects the adoptive parent from
interference by a natural parent, while relieving the natural parent from any legal responsibility for the child. When
adoption occurs over the objection of a natural parent, divestiture is particularly important to shield the adoptive
parent and child from disruption.
Furthermore, the statue requires that a married couple, living together, must petition jointly, unless the petitioner’s
spouse is the child’s natural parent (a step-parent adoption) and the natural parent has consented to the adoption.
Family Law Article § 5-331.
30 Section of Family & Juvenile Law
September 2010
Currently, Maryland does not permit same-sex marriage. Yet, the adoption statute does not prohibit adoption by
same-sex partners; there is nothing on the face of the statute which precludes the joint adoption of a child by two
unmarried cohabitants.
When same-sex partners file jointly, the rights of the natural or previously adoptive mother are not terminated. Like In
re Adoption No. 90072022/CAD, the case of the unmarried man and woman where the mother’s rights were not deemed
forfeited, the court can infer an extension of the step-parent exception for the non-spousal partner of the natural parent.
Although Maryland appellate courts have not ruled on this issue to date, other states have read the step-parent exception
broadly to include adoption by same-sex partners. In re B.L.V.B. and E.L.V.B., 628 A.2d 1271, 1272 (Vt.1993); In re
Adoption of a Child by J.M.G., 623 A.2d 550 (N.J.1993); In re Adoption of Evan, 583 N.Y.S. 2d 997 (1992). These courts
interpreted similar statutes in light of the fact that the natural parent intended to continue to raise the child with the partner
and in the best interest of the child.
In Conaway v. Deane, 401 Md. 219, 932 A. 2d 571 (2007), addressing same-sex marriage, Judge Irma J. Raker in a concurring in part and dissenting opinion discussed statutory benefits that married couples have to which same-sex couples
are entitled. Among them, she states,
“Maryland also recognizes ‘second–parent adoptions,’ where a child with one parent is adopted by a second parent
without severing the prior existing parental relationship. Id. § 5-331(b)(2) (adoption without prior termination of
parental rights). Maryland’s trial courts have granted same-sex couple ‘second-parent adoptions’ and have noted
that such adoptions are in the best interests of the child. See In re Petition of D.L.G. & M.A.H., No. 95-179001/
CAD, 2 MFLM Supp.21 (1997) (Cir. Ct. Balt. City, June 27, 1996); Letter from Kathryn M. Rowe, Assistant Att’y
Gen., Office of the Att’y Gen., Sharon Grosfeld, Delegate, Maryland Gen. Assemb. (June 9, 2000) Thus, sexual
orientation is not a factor in adoption proceedings in Maryland and the children adopted by same-sex couples are
treated under Maryland law in the same way as children adopted by a heterosexual or married couple.”
Chief Judge Robert M. Bell, (while not agreeing with Judge Raker’s concurring opinion regarding the rational basis
test as the standard for review regarding same-sex marriage), joined in the dicta about the legal entitlements of samesex couples.
The law is slow in catching up with the cultural shift taking place in society. As the composition of contemporary
families becomes more diverse, courts are called upon to make decisions about the status of these families. Every
adoption case must be examined on its own merits to determine what is in the best interests of the child. If the
circumstances warrant a finding that the adoption is in the best interests of the child, a broader rather than narrow
interpretation of the law serves those paramount interests.
Kathleen O’Ferrall Friedman
Judge Kathleen O’Ferrall Friedman, after serving 17 years on the Circuit Court for Baltimore City, nine of them as the
Judge in Charge of the Domestic Docket, retired in 2002. She issued the 1996 decision in the case of In re Petition of
D.L.G. & M.A.H.
September 2010
Section of Family & Juvenile Law 31
Case Note: Boemio v. Boemio...
(continued from page 29)
tions have created alimony guidelines and/or formulas that are
designed to provide specific alimony recommendations (in both
amount and duration) based upon the specific data that is inputted into the guidelines.
relied upon alimony guidelines as a factor in reaching an alimony
award. That scenario did occur recently in the Circuit Court for
Montgomery County in the case of Boemio v. Boemio.
Boemio v. Boemio
While there is a clear trend developing toward the use of such
guidelines in reaching alimony awards, this trend has yet to become a torrent. Pennsylvania has adopted a statewide, legislative
formula that is utilized by trial courts to calculate the amount of
alimony to be awarded in a case, whereas Maine has adopted a
formula for establishing the duration (but not amount) of spousal
support. A number of other states (including but not limited to
Ohio and Massachusetts) are exploring legislation that would
create specific alimony formulas/guidelines.
On a more local level, a number of state counties throughout
the United States have developed their own alimony guideline
formulas for calculating spousal support, including Maricopa
County (Arizona), Santa Clara County (California), Johnson
County (Kansas), and Fairfax County (Virginia). Generally,
these local guidelines are not mandatorily required to be utilized
but are nonetheless employed by both practitioners and judges
in these (and surrounding) venues as both a tool for settlement
negotiation and an aid in decision-making (in addition to any
other statutorily required criteria).
Meanwhile, professional organizations have also created alimony
formulas to address the issue of uniformity and certainty in support
awards. Of these, two of the most influential sets of guidelines
are, undoubtedly, those developed by the American Academy of
Matrimonial Lawyers (“AAML”) and the Kaufman Center for
Family Law. The AAML’s guideline approach is a formula that
focuses primarily upon the respective incomes of the spouses and
the duration of the marriage at issue (but includes a number of “deviation factors”, the existence of which might suggest a deviation
from the basic guideline formula result).1 The Kaufman Center’s
guidelines, on the other hand – which became available for use in
2008 – center upon the claimant’s ability to support herself and
the degree to which the marriage impacted that ability.2
For some time, Maryland domestic relations practitioners have
increasingly utilized both the AAML and the Kaufman guidelines
as a barometer for assessing potential alimony claims (with the
Kaufman Guidelines, perhaps, being used on a more prevalent
basis due to their easy accessibility via internet). Moreover, it
is commonly understood by many practitioners that at least some
Circuit Court judges likely utilize the Guidelines off-the-record
during alimony cases as a method of ‘double-checking’ their
own, independent determinations regarding support under the
factors required by Family Law Article sec. 11-106.
Inevitably, it was only a matter of time before a Maryland trial
Court – to the chagrin of at least one of the litigants – expressly
32 Section of Family & Juvenile Law
The Boemio divorce involved a two decade-plus marriage in
which the Husband earned a six figure salary and the Wife was
employed as an administrative assistant (a low paying position
which she took, in part, to also provide for the primary care of the
parties’ minor children. At the conclusion of a two day trial, the
Chancellor, Judge Michael D. Mason, determined that without
an award of alimony an unconscionable disparity would exist in
the standards of living between the two parties. In addition to
clearly considering the factors enumerated in Maryland Family
Law Article sec. 11-106(b), the trial Judge also indicated that
“for informational purposes only” he had calculated alimony by
using the AAML alimony guidelines (something the Judge, at a
prior pretrial conference, had informed the parties’ counsel he
was going to do). The AAML formula resulted in a permanent
alimony award of $3,816 per month.
In using the AAML Guidelines, the Chancellor indicated that
they were not authoritative and were “subject to all of the factors” outlined in the alimony statute. Ultimately, Judge Mason
elected to award $3,000 per month in indefinite alimony. Mr.
Boemio appealed, in part contending that the trial Court’s use
of the AAML Guidelines improperly influenced the ultimate
alimony determination. The Court of Special Appeals affirmed
the Chancellor’s ruling in an unreported opinion. Subsequently,
the Court of Appeals granted certiorari to determine whether the
trial court erroneously relied upon alimony guidelines, which
were not authorized by statue or rule, in determining the alimony
award assessed against Mr. Boemio.
While observing that the trial court clearly considered the factors
required by Family Law Article sec. 11-106(b) in reaching its
alimony determination, the Court of Appeals also determined that
the court’s use of the guidelines had “played a role in its decision.”
Consequently, the Court of Appeals determined that it “must decide
whether a court’s substantive consideration of these guidelines,
along with the FL Section 11-106 factors, is a legitimate exercise
of the Circuit Court’s discretion.” Ultimately, the appellate Court
answered “that if the guidelines reasonably direct the court to a fair
and equitable award without supplanting or frustrating any one of
the twelve enumerated statutory considerations, a court may refer
to them as an aid in translating its statutorily mandated analysis into
a dollar amount” (emphasis in original).
In ultimately holding that the trial judge’s use of the AAML
Guidelines was proper, the Court of Appeals first bemoaned
(continued on page 33)
September 2010
Case Note: Boemio v. Boemio...
(continued from page 32)
(as observed by various legal scholars) that statutory alimony
factors provide scant, actual guidance regarding translating
the considerations into an actual dollar award. The Court
then proceeded to recite how “[n]umerous courts across the
country have resorted to non-legislative formulas [alimony
guidelines] as aids in crafting alimony awards.” After praising such guidelines for providing predictability for counsel/
clients and for increasing litigant satisfaction, the Court
of Appeals proceeded to note both (1) the AAML’s highstanding as an organization created to elevate and improve
the practice, standards, and cause of matrimonial law, and
(2) the high degree of study and review that went into the
AAML’s creation of its alimony guidelines. Consequently,
the Court of Appeals concluded that “the AAML recommendations are the product of a careful study by a professional organization of knowledgeable practitioners, which
are reasonable in approach, and do not supplant FL Section
11-106 or frustrate its goals. We consider these, and other
legitimate and neutral guidelines, helpful to judges making
alimony awards in Maryland. Therefore, we conclude that
the court did not err in consulting those guidelines after
conducting its statutory analysis.”
In dicta, the Court of Appeals, commented at length regarding the
Kaufman Guidelines; it observed that those Guidelines were not
yet available at the time of the original Boemio divorce hearing,
and that the Court was “by no means suggesting that the AAML
Guidelines are preferable to the Kaufman Alimony Guidelines.”
Furthermore, the Court of Appeals suggested that a trial court
might have significant discretion in whether to utilize – and to
what to degree – alimony guidelines. Specifically, the Court
observed that in the application of the required statutory alimony
considerations in Section 11-106(b), a trial court “may wish to
consult no monetary guidelines, one particular set of guidelines,
or a combination of guidelines.”
The post - Boemio v. Boemio landscape
In one sense, Boemio v. Boemio does not represent a cataclysmic
shift in domestic relations law as both Maryland judges and
practitioners have for some time been using alimony guidelines
– at least as a tacit barometer – in spousal support cases. On the
other hand, the Court of Appeals’ blessing of the express use of
such formulas by trial judges gives the guidelines a legitimacy
and validity previously unknown. In the wake of Boemio, it
is foreseeable that the use of such guidelines by both Courts
and domestic relations practitioners will become widespread
in spousal support cases.
And while the Boemio holding may in fact represent the beginning of a movement toward greater predictability in the area of
spousal support, the does raise many unanswered questions:
September 2010
Which sets of alimony guidelines “reasonably direct the court to
a fair and equitable award without supplanting the enumerated
statutory considerations?
The Court of Appeals expressly noted that the AAML Guidelines
could be used by the trial court because they were reasonable
in approach (to alimony) and did not supplant the required
alimony considerations in Section 11-106(b). In making this
determination, the Court observed that these guidelines were
neutral in application and were “the product of a careful study by
a professional organization of knowledgeable practitioners...”.
The Court of Appeals expressly opined that there were “other
legitimate and neutral guidelines” that might be utilized by a
trial court. This statement raises the following question: What
other alimony guidelines are those?
In its opinion, the Court of Appeals went to considerable effort
to discuss the Kaufman Guidelines and to specifically note that
the affirmation of the use of the AAML Guidelines in Boemio did
not mean that those Guidelines “are preferable to the Kaufman
Alimony Guidelines.” Thus, by implication, one might assume
that the Kaufman Guidelines also constitute a proper tool for
reaching an alimony award by a trial court when properly used
in accord with the required statutory considerations. This begs
the question, however, of what other sets of alimony guidelines/
formulas might meet the Court of Appeals’ criteria?
An equally important issue is the question of who determines
what sets of guidelines are appropriate? Can a trial judge –
as the Court of Appeals appeared to do – take judicial notice
regarding the extent of the research that went behind the
creation of any given set of guidelines, or of the neutrality (or
lack thereof) of the group that creates the guidelines, or of the
guidelines themselves? Can such a determination be made
without either (1) extensive factual – and perhaps expert – testimony regarding the creation and operation of the guidelines,
or (2) legislative direction?
Are the parties entitled to advance notice regarding the
possibility of a trial court utilizing a particular set of
alimony guidelines?
Without any further explanation, the Court of Appeals observed
in the Boemio decision that the trial court made counsel aware
of its intent to consult the AAML Guidelines in a pretrial meeting. Presumably, this at least provided the parties with some
opportunity to (1) run the Guidelines themselves, (2) prepare
argument and fact-finding regarding the propriety of the AAML
Guidelines both in general and to the case at bar, and (3) offer
the Court information regarding the results dictated by other
alimony guideline formulas.
(continued on page 34)
Section of Family & Juvenile Law 33
Case Note: Boemio v. Boemio...
(continued from page 33)
In the wake of the Boemio decision, it is conceivable that a trial
judge or litigants may seek to utilize any number of alimony guidelines calculations in a given spousal support case. Reasonable
advance notice by both the parties and the Court of such intention
is probably a good idea. A party may have a fundamental right to
examine the propriety and applicability of the Maricopa County,
Arizona alimony guidelines before they are actually used as a tool
in a Queen Anne’s County, Maryland courtroom.
What if the application of competing sets of alimony guidelines
suggest different results?
The Court of Appeals determination regarding the usefulness
of alimony guidelines is a step toward greater predictability in
spousal support cases. The Boemio holding, however, hardly
brings sweeping predictability to the arena of alimony litigation.
Unless and until the Legislature mandates the use of a specific
and sole set of alimony guidelines in Maryland, a significant
degree of unpredictability remains. As any seasoned family
law attorney has likely already discovered, the application of
both the AAML and the Kaufman Guidelines in the same case
can often produce drastically different results.
Thus, the following “practice pointer” should be considered: In
any complex alimony case, the attorney should run the AAML,
Kaufman, and any other alimony guidelines that might be appropriate to determine what set best favors her client’s position.
Accordingly, the attorney should be prepared to argue which set,
if any, should be utilized by the trial court and why. At times,
the attorney may find it advantageous to run various alimony
guidelines and offer the “average” of the calculations when that
average is in the client’s interests.
Conclusion
In Boemio v. Boemio, the Court of Appeals cited, in significant detail, various examples of alimony guidelines in use
34 Section of Family & Juvenile Law
throughout the United States, including how those Guidelines
specifically operate. The Court went on to clarify that “[w]
e do not mention these examples to indicate that the specific
numeric formulas are necessarily right for Maryland. We use
them to demonstrate that many courts, with statutes setting
forth evaluative criteria, have considered it beneficial to utilize
monetary guidelines as an aid in reaching their decisions.”
When this statement is read in conjunction with (1) the various
observations by the Court in Boemio praising the virtues of
predictability in alimony decisions; (2) the Court’s holding that
the chancellor’s use of the AAML Guidelines was appropriate
at trial; and (3) the Court’s observation that the use of other
sets of alimony guidelines by trial judges may be appropriate
as well, the Boemio decision almost becomes a clarion call for
the adoption of a single, specific set of alimony guidelines of
universal application in Maryland.
Ultimately, that issue is a question for the State Legislature
to consider. Until that time comes, however, the domestic
relations practitioner now has a new set of tools in his or
her litigation and settlement toolbox: The Alimony Guidelines (plural).
Jim Milko is a partner in the firm of Trainor, Billman, Bennett,
Milko & McCabe and, for the most part, likes predictability.
Footnotes:
1
An extensive discussion regarding the actual operation of the
AAML Guidelines can be found in Mary K. Kisthardt, Rethinking Alimony: The AAML’s Considerations for Calculating
Alimony, Spousal Support or Maintenance, 21 J. Am. Acad.
Matrimonial Law. 61, app. A (2008), cited extensively in Boemio v. Boemio.
2
The Kaufman Guidelines are provided by The Women’s
Law Center of Maryland free of charge for use by attorneys and Courts, and can be found at www.kaufmanalimonyguidelines.org.
September 2010
Legislative Summary for the 2010 Legislative Session
By: Dorothy Fait, Esquire
1.
HB500/SB252 - Child Support Guidelines - After
years of study and a drawn out legislative battle, the
revised Child Support Guidelines were passed. This
was the first revision in the Guidelines, which were
originally enacted more than twenty years ago. The
new Guidelines contain an updated grid of the “market
basket” numbers which more accurately reflect the cost
of raising a child. The Bill also applies to families with
incomes up to $15,000 per month. The enactment of the
Guidelines is not grounds for requesting an increase, as
the enactment does not constitute a material change in
circumstances, as stated in the law. The law provides
that it shall “take effect” October 1, 2010.
2.
HB534/SB329 - Extension of Domestic Violence
Protective Order – This law allows a Court to extend
a Protective Order for up to two years if a respondent
commits a subsequent active abuse while the original
Protective Order is in place.
3.
HB1382/SB554 - Protection for Domestic Violence
and Sexual Assault Victims in Rental Housing - This
law gives protections to victims of domestic violence
who live in rental housing. This law provides that if
a victim/tenant has a final Protective Order or Peace
Order, the victim may terminate the lease without
penalty in order to re-locate. Further, a landlord must
change the locks to a victim’s apartment upon request
of the victim and at the victim’s expense. The law also
creates a rebuttal presumption that the victim is not in
breach of the lease if the landlord is attempting to evict
the victim for the behavior of the abuser.
4.
5.
HB1149/SB935 - Shielding of Certain Records Upon
Denial or Dismissal of a Protective Order or Peace
Order - This law was a compromise effort after controversy over the “expungement” Bill proposed last year
to allow a respondent to expunge a Protective Order
or Peace Order, if the Order was denied or dismissed.
This law allows a respondent, in a case that has been
dismissed or denied, to request a Court to remove the
notation of a Protective Order or Peace Order from the
Maryland Judiciary Case Search website and all other
public access records. However, domestic violence
advocates, judges, and law enforcement officials would
have access to these records.
HB661 - Arrest for Violation of Protective Order
- This law provides that an officer shall arrest an offender with or without a warrant for a violation of a
Protective Order.
September 2010
6.
HB905/SB22 - This law allows a respondent in a Protective Order case to transport a firearm for the purpose
of surrendering it to law enforcement.
B.
BILLS OF INTEREST THAT FAILED
1.
SB600 - De Facto Parents - This Bill was a priority
of the Family Law Section of the Maryland State Bar
Association this year. The Bill sought to correct case
law in Maryland regarding the rights of third parties to
seek custody or access to a minor child, if that person
has had a bonded parent/child relationship with the
child. The Bill sought to correct and revise the rulings
in Koshko v. Haining, 398 Md 404 (2007), and Janice
M. v. Margaret K., 404 Md. 661 (2008). The Bill will
in all likelihood be introduced again and the Family
Law Section will work with the Maryland Judicial
Conference to refine language in the Bill, as necessary,
to address the judiciary’s concern.
2.
HB761 - Exemption from Execution on a Judgment
- Exception for Child Support and Alimony - This
Bill was corrective legislation to solve a problem presented in a recent Court of Appeals case of Rosemann
v. Salsbury, Clements, Bekman, Marder and Adkins,
412 Md. 308 (2010). In that case, a personal injury
law firm was holding proceeds from a personal injury
settlement for their client. The spouse of the client
sought to attach those proceeds for payment of child
support arrearages. Because personal injury proceeds
are exempt from most attachments, the creditor/parent
was unable to attach the proceeds. HB761 would have
allowed such an attachment. The Bill failed, but in all
likelihood be introduced again.
3.
HB700 - Protective Orders - Burden of Proof - This
Bill would have modified the burden of proof required
of a petitioner in a hearing for protective from domestic
violence from the standard of “clear and convincing”
to the normal civil standard of preponderance of the
evidence. Maryland is the only state that requires clear
and convincing evidence in a protective order hearing.
This Bill has been introduced in years preceding this
one and has never passed. In all likelihood, it will be
filed again, but perhaps not for a year or two.
4.
HB808 - Religious Freedom and Civil Marriage
Protection Act - This Bill would have allowed same
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Section of Family & Juvenile Law 35
Legislative Summary...
(continued from page 35)
sex marriages in Maryland. During the legislative session, the Maryland Attorney General issued an Opinion
requiring Maryland State agencies to recognize same
sex marriages from other jurisdictions. This Bill failed
in a firestorm of debate over the issue of same sex marriage. However, Bills also failed that would have authorized a constitutional amendment to limit marriage
to a man and a woman (HB1079/SB1097); prohibited
the recognition of out of state same sex marriages
(HB90/SB852); and blocked the implementation of
any changes based on the Attorney General’s Opinion
(HB1532/SB1120).
5.
6.
HB1139 - Family Law - Child Custody Determinations - This Bill has been introduced several times.
The Bill seeks to codify case law in Maryland regarding the various factors a Court is to use in determining
child custody. The Bill is usually paired for hearing
with Bills that would mandate joint legal and physical custody of children. This year was no exception
and HB925 and HB950, proposing mandatory joint
custody were introduced again. All of these Bills
failed; although, there is constant need to educate the
legislature on the problems with any mandatory law
requiring joint custody.
HB1185/HB1359 - Marital Property - Military
Pensions - These Bills, introduced late in the session,
sought to treat spouses of military members different
from other spouses of individuals under any other
retirement system with regard to pension division.
The Bills would have provided a smaller fraction of
payment for a spouse of a military member and would
36 Section of Family & Juvenile Law
have provided that a spouse’s benefits would terminate
upon his or her re-marriage. These Bills were defeated,
but in all likelihood will be introduced again.
7.
SB329 - Domestic Violence - Requirement to Advise
Respondent of Consequences of Final Protective
Order - This Bill would have provided for a “Miranda”
type warning by the Court to a respondent who is
contemplating consenting to a final protective order.
In that event, a Judge would be required to advise the
respondent of all the consequences resulting from the
issuance of a Final Protective Order. The Bill failed,
but will in all likelihood be introduced again.
8.
HB893 - Hand Gun Permits -Victims of Domestic
Violence - This Bill would have permitted victims of
domestic violence to “jump the line” in obtaining a
permit for a hand gun. This Bill failed, but since this
was the second year this Bill was introduced, it will in
all likelihood be introduced again.
9.
HB336/SB577, SB578, SB714 - Removal of Most
Grounds for Divorce - These Bills would have allowed individuals to file for divorce, even if they are
living under the same roof. Further, the Bills proposed
that the grounds for a voluntary separation absolute
divorce be reduced to six months and no fault separation to one year. All the Bills failed, but will in all
likelihood be re-introduced.
Dorothy Fait, Esquire, practices law in Rockville, Maryland;
she is the incoming Secretary of the MSBA Family & Juvenile
Law Section.
September 2010